Winnipeg Free Press - PRINT EDITION

Judge blasts officers, 'arbitrary' detention

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A judge is sticking it to a pair of Winnipeg police officers.

Judge Cynthia Devine slammed the actions of the officers, ruling their detention and searches of two men walking in the North End is a clear-cut example of "biased or ignorant" policing in the high-crime area.

"The police conduct was very problematic, demonstrating a pattern of illegally detaining and searching individuals in the North End... on the basis of 'guilt by association,' " Devine wrote in a recent, strongly worded ruling where she threw out drug and weapons evidence against Daniel Gauvin.

Her decision effectively tanked the Crown's case against the 35-year-old. The officers, one with 19 years of experience, detained Gauvin and another man as they walked shoulder by shoulder down Charles Avenue near Alfred Street around 4:20 a.m. on May 3, 2013.

They were stopped and detained because the man Gauvin was walking with was holding a wooden stick police assumed was a weapon.

In fact, the stick was being used to poke around in garbage bins and collect "trinkets," Devine said.

Police confirmed this after being invited to look in the man's backpack where they saw a bell and coffee cups. He was released without charge.

Gauvin, however, didn't get off quite so easy.

During searches of him post-detention -- the officers said they were done for their own safety -- police found a folding knife and small amounts of methamphetamine and marijuana.

He was taken to a police station and subjected to a strip search, which is common police practice after drug-related arrests.

Gauvin fought the charges he was accused of, arguing his detention and resulting searches were illegal and several of his fundamental rights were breached by the officers.

The officers testified at trial and defended their decision to stop both men and hold them for what they said was a weapons investigation.

"When we work in the North End, we are dealing with a lot of people who are doing crimes, and when you see somebody walking down the street with a stick in their hand, you've gotta assume this is a weapon," the more senior officer testified.

Devine called this assumption "troubling," saying the officers weren't investigating any crime in particular, nor had they been dispatched to any particular call for service.

Also, said Devine, there was no information any crime had been committed in the area.

The officers didn't ask whether Gauvin and the man with the stick were together, she found. In this case, because Gauvin's detention hinged on that, it was their duty to at least ask, she said.

"It is ironic indeed that Mr. Gauvin was detained on the basis that he was walking with a person who police only thought was carrying a weapon, but that (the other man) was released without charge even when it was learned he was walking with a person the police knew had a weapon," said Devine.

Gauvin's detention was "arbitrary" and therefore illegal, she ruled.

Devine found the three searches the officers subjected him to were unlawful. She rejected the officer-safety claims.

As well, Devine found police didn't afford Gauvin his right to contact a lawyer in a timely fashion. She refused to admit the drug and weapon evidence in the case, saying courts had to distance themselves from out-of-bounds police conduct.

Letting the drugs and knife stand would allow police to "reap the seeds of a warrantless search," said Devine.

"The breaches were very concerning in this case, as they were motivated by ignorance of charter law, and bias," Devine said.

"The officers were of the view that they had the authority to detain two men walking down the street, one of whom was carrying a stick to poke around in garbage and recycling. The reason: It was the North End of Winnipeg and they were together."

"The officers' views demonstrate not only their thinking that night, but also strongly suggest a pattern of behaviour on the part of the police patrolling the North End of Winnipeg... The court will distance itself from this pattern of abuse of the right against arbitrary detention of people in (the North End area)," said Devine.

"The impact of this type of police behaviour breeds distrust, fear and cynicism among a population of the city that have been historically been treated like second-class citizens."

Republished from the Winnipeg Free Press print edition July 4, 2014 B4

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