Search of disabled man’s room reasonable, lawyer argues

The commissioner of Manitoba’s Law Enforcement Review Agency acted reasonably in dismissing a complaint against two police officers accused of illegally searching the room of a disabled man, a lawyer argued Monday.

Michael Filbert, 69, has asked the courts to conduct a judicial review of the decision to toss his complaint.

Officers were called to his Winnipeg group home to recover a wireless phone he had allegedly taken into his room and refused to return. He alleges officers conducted a search of his room without a warrant and threatened him with an electroshock weapon.

Lawyer Paul McKenna said there is insufficient evidence to prove police abused their authority when they entered Filbert’s room. He argued they were not searching for evidence of a crime, but rather trying to resolve the issue swiftly and without pressing charges.

“It’s a very small intrusion to find one phone in a pocket and give it back, (get) out the door and it’s over. There’s no arrest, no detention and no criminal record,” McKenna said.

“I would have the officers do what’s most pragmatic, what causes the least harm, which causes the least undue involvement in the legal system.”

According to the officers’ version of events, which McKenna detailed briefly in court, they were called to the group home after a staff member phoned police and alleged Filbert was threatening and defiant when asked to return the phone.

When they arrived at the group home, they asked a staff member to call the missing phone, which began ringing inside Filbert’s room. The officers said they gave him an opportunity to retrieve it himself, but he declined to do so.

That’s when one of the officers entered the room and located the phone inside the pocket of a coat hanging in Filbert’s closet. The other officer, meanwhile, unholstered his Taser but did not point it at Filbert, according to their statements.

Filbert’s account of the incident varies from that of the officers. He said they tore through his belongings without his consent, violating his Charter rights against unreasonable search and seizure.

Filbert said he was frustrated by the encounter and tried to leave the room to smoke a cigarette. He said an officer then took out his Taser.

Any perceived aggression on Filbert’s part was likely the result of a misunderstanding of the man’s cognitive disabilities and his hearing impairment, which causes him to speak loudly and in short sentences, his lawyer Brandon Trask argued.

Trask said the officers should have secured a search warrant before entering Filbert’s room.

“This, in our view, begs the question of would this have happened in a different setting? Would this have happened at a mansion on Wellington Crescent with people not living with disabilities? And I think the answer is clearly no,” he said.

“This case … goes to the very heart of disability rights intersecting with the issue of police accountability.”

Provincial court Judge Keith Eyrikson has been tapped to lead a judicial review into LERA commissioner Harmen Wouda’s decision to dismiss Filbert’s complaint in September.

Eyrikson’s role is not to decide whether Wouda made the right call, but rather to determine whether he was reasonable in his conclusion.

If the judge determines the decision was not reasonable, the case could move to an appeal, at which point there could be a hearing with testimony from Filbert, the officers and witnesses.

The judge could also direct LERA to take a second look at the case and seek alternative resolutions.

Eyrikson said he hopes to render a decision as soon as possible. A court appearance is slated for late next month.

tyler.searle@freepress.mb.ca