Media photographer loses case against Winnipeg officer

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This article was published 22/02/2024 (603 days ago), so information in it may no longer be current.

While it was unlawful for a Winnipeg police officer to seize a photographer’s camera at a crime scene in 2017, the officer will not face any discipline, a judge has ruled.

Six years after a Winnipeg Police Service officer took his camera while he was working, Winnipeg Sun photographer Chris Procaylo learned he had lost his Law Enforcement Review Agency case against the officer, whose identity is protected under a court-ordered publication ban.

In the written decision from provincial court Judge Tony Cellitti, which was dated November 2023 and recently posted online, the judge explained he believed the officer’s version of events and dismissed all allegations against him.

“I have serious and significant concerns regarding the credibility and reliability of the complainant’s testimony,” Celliti wrote.

The judge acknowledged the officer had seized the camera without a warrant, amounting to a breach of Procaylo’s charter right to be protected against unreasonable search or seizure.

The judge decided it wasn’t a serious charter breach because Procaylo’s privacy wasn’t really affected since the camera and all of the images on it belonged to his employer.

Celliti wrote that he believed the officer was acting in good faith when he seized the camera, calling it “a professional error.”

“His intentions were laudable,” the judge wrote.

He took issue with the fact Procaylo’s initial written complaint and subsequent affidavit were missing details that he spoke about in his testimony.

Celliti accepted the officer’s testimony he didn’t know the photographer was a member of the news media until after he’d seized Procaylo’s camera.

Procaylo testified he’d identified himself immediately. He has been a Winnipeg Sun photographer since 1996. At the time, the officer had worked for WPS for 13 years.

The incident happened Dec. 2, 2017 at what was initially called in to police as a report of a man with a weapon at a Main Street furniture store. Terrance Garson, 30, was injured on scene and later died.

In a written statement, Procaylo said the decision “is profoundly disappointing and leaves me deeply concerned about the freedom of the press in this country.”

“I’ve fought this case publicly and transparently for six years because I believe that we can’t have a functioning democracy without a free press — journalists need to be able to do their jobs without state interference.”

He said the LERA process, and the legal system more broadly, “favours law enforcement at every turn.”

It is rare for a LERA complaint to make it to the hearing stage in Manitoba. The hearing took place in a Winnipeg courtroom over six days in May and November 2022. The hearing also heard from the officer’s partner.

The officer was accused of abusing his authority by seizing the camera without a warrant, by being “discourteous or uncivil” and by conducting himself in an abusive or oppressive manner.

The judge dismissed the last two allegations, saying he didn’t believe Procaylo’s account that the officer used profanity and verbally and physically intimidated the photographer.

His camera was returned to him the next day, and a spokesman for the police service publicly apologized for the seizure.

Cellitti declined to admit into evidence a Winnipeg Sun article that quoted Const. Rob Carver as saying the camera shouldn’t have been taken.

Josh Weinstein, lawyer for the police officer, said Thursday he is pleased with the decision, which he said speaks for itself “by concluding that the evidence presented by the complainant did not meet the standard of proof.”

“As for the issue of the apology by the police spokesperson, there is no correlation between such a statement and the determination that the judge has to make. The judge has to independently assess alleged wrongdoing based on credible evidence presented in court, as opposed to a spokesperson’s view of what may or may not be proper conduct within an incident,” Weinstein wrote in an email.

The judge declined to issue recommendations, something Procaylo said was a missed opportunity to make the legislation “more accessible, more effective and more equitable.”

Procaylo called on the provincial government to change the Law Enforcement Review Act and appoint a special prosecutor to handle complaints so that complainants don’t have to choose between incurring legal fees, representing themselves, or dropping their complaint.

People who file a complaint against police under LERA are held to a higher standard of proof than other civil cases, the judge stated in his interpretation of the need for “clear and convincing” evidence against police.

His decision would be no different even if he had used the lower standard of proof on the balance of probabilities, Cellitti wrote.

katie.may@freepress.mb.ca