Murder most foul and we don’t care

(The multi-plex where gang membersHenderson and Baptiste were killed on Jan 31, 2009)
(The multi-plex where gang membersHenderson and Baptiste were killed on Jan 31, 2009)

 

[EDIT: A slightly-revised version of this post appeared in the Winnipeg Free Press Sunday edition on Sept. 15. Below is the original version].

I keep wondering why more folk in the general public don’t appear to care all too much that two young aboriginal men were brutally cut down in the prime of their lives, killed brutally inside a shabby suite in a West End multiplex.

Yes, Dennis Baptiste and Jessie Henderson were members of a feared and loathed Winnipeg street gang, the Mad Cowz.

But for many young aboriginal men in a city where baby-faced teens somehow can get their hands on a .357 Magnum and carry it about with seeming impunity to kill over ridiculous notions of revenge, gang membership or association is to people in some particular circumstances, more akin to a Scouts club or after-school sports program might be for semi-affluent kids who live in Winnipeg’s sprawling suburbs.

And therein lies the rub of it. Our ability to look the other way or shrug our shoulders at the deaths of these men speaks to a fundamentally larger problem our society suffers from.

That being: a shocking and profound inability to empathize very much any more. That’s my gut feeling. And I trust my gut.

Live by the sword, die by the sword,” one person replied to me on Twitter tonight when I expressed my angst on this topic.

I celebrate every time one or more of these drug dealer/gangsters gets snuffed,” said another.

Bullshit, I say to them here in reply. These are the answers of cowards.

Dismiss out of hand what you refuse to even try to understand.

Eye for an eye is an exercise in mental gymnastics which will take us nowhere.

Regardless of anything: These two 23-year-old were living, breathing people, goddammit. For example: Baptiste had two young children. He had a long-time partner who cared about him. He lived, he breathed.

And dear God, how he bled.

I never met either of these men. And I’m pretty much sure they would have spat on me — or at least eyed me with extreme suspicion — if I had ever had the courage to walk up and say hello.

That’s not the point. The point is that between my cowardice and what I assume would be their disdain are symptoms of a sickness.

Just as street gangs are symptoms of a larger sickness still — a generational, trickle-down illness of poverty, rampant unfairness, inequality and racism.

I deplore senseless violence. I detest gangs and their uber-profitable, miserable businesses of drug-and-human trafficking, just to name two of the major income streams.

But to the degree an outsider can, I understand why the gangs exist and how they persist.  And I know we don’t (or is it can’t or won’t?) do nearly enough as a society to be able to convince gang members to want to get out, that something better is waiting on the other side.

I find it very, very difficult to simply say, ‘meh‘ to a life cut senselessly, brutally, criminally short.

But that’s what I see happening when it comes to the overall public reaction to the murder trial — a process trying to find some justice for Henderson and Baptiste.

Media coverage, aside from the daily newspapers, has been scant, despite wide-spread coverage of their deaths when they were discovered.

It makes no sense to me how there’s little follow-through.

But I won’t get too deep into that, because we don’t always know what’s going on behind the scenes. This brings me to what I wanted to point out. My appreciation.

I don’t know if the Winnipeg police have it right in charging Ken Roulette – reportedly a friend of these men — with the deaths.

There are things about this case I’ve seen so far that don’t quite add up to me, at least just yet.

But in the end, it’s not up to me, or you, to decide. In this way, we’re just observers to the work six men and six women are now charged with doing.

But what I do know is that homicide investigators and the two seasoned Crown prosecutors now putting in the case didn’t have the choice of saying, ‘Meh,’ and shrugging their shoulders when called on to try and bring some resolution to this awful matter.

What I do know is that two of Winnipeg’s best defence lawyers don’t appear to be conceding one inch of territory to their state adversaries — another hallmark of criminal-legal seriousness. The stakes are huge here.

There’s an aura to the proceedings as a whole which I can only describe as spine-tingling. It hangs over the courtroom like a pregnant dark cloud.

To me, it’s right and just that this feeling persists. The awfulness of what happened here can’t be brushed aside, despite my fear it will.

Ask yourself this. If it had been two 23-year-old white kids from Charleswood or St. Vital who were killed in this fashion — what would the interest be then?

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Falling prey to novelty: Winnipeg Police Board part ii

Lest this be perceived as a personal criticism of Winnipeg Police Board Chair Coun. Scott Fielding, it’s not.

It is, however, a critique of his motion (sadly, the very first of our new police board to foist upon the WPS) which now ties up police time to study and report back on the idea that city police officers wearing  body cameras would be a step forward for public safety and foster greater accountability.

First, this isn’t a new idea. For years, $1-million taxpayer bucks has been earmarked in the city’s 2016 projected capital budget for this proposal. Why it’s suddenly necessary to bring forward now, who knows? More on this below.

The upside, we’re told, is police uniform cameras would lead to fewer accusations against police, and secure iron-clad evidence to be used in court against suspects, leading to speedier convictions.

I agree with Chief Devon Clunis when he says the actual amount of legitimate officer-misconduct complaints are pretty low in Winnipeg.

Therefore, the benefit of blowing a million bucks on videotaping arrests as an accountability seems a waste.

And the thing is, it’s not just a million bucks.

That may be the projected initial cost of equipping 800 officers in the scheme, but the better, more practical, question to ask is: OK. We have all this great video footage. Now what?

Clunis estimated the true cost of cops wearing cameras would be double or triple the $1-million price tag.

I’d be willing to guess it may be even more than that. It’s not just as simple as a cop coming off shift and dropping off a flash card at the desk and saying. ‘see ya.’

Should that footage be requested for court purposes, it would require someone to review, annotate and transcribe it for it to be disclosed and used in a legally-appropriate manner.

One conservatively staffed 10-hour shift of 54 general patrol officers would equal [assuming the whole shift is recorded] is 540 hours of video. At three shifts a day that’s 1,620 hours of video a day to be catalogued, maintained and preserved by somebody for some potential eventual use.

Who does that work and at what cost remains the huge unanswered question. How Charter and privacy rights are affected is also an unknown at this point.

Second, video evidence, in my experience, seldom speeds up the court process.

Instead, it becomes another legitimate avenue for the defence to carefully assess and weigh a case, leading to delay. In the recent Pizza Hotline murder of Gerald Crayford, for example, there was video evidence from in the store where it happened.

From Judge Rocky Pollack’s recent decision in the D.S. case [emphasis mine].

With clarity, the store security camera recorded D.V.J.S. walking in first, hiding his face with a black toque and a bandanna.  Over his shoulder, requiring two hands to hold it, was an axe.  Mr. B… was wearing a hood and he was carrying a knife.  They came in quickly, demanding to know where the money was.  When Mr. Passawe ran toward the rear, the youths ran out the front door, crossed the street to a hospital and called 911 to report the robbery.

[11]        D.V.J.S. and Mr. B…. caught Mr. Passawe before he could escape.  D.V.J.S. held the axe in a threatening manner and demanded that the man open the till.  He went through his pockets and took his phone, headphones, a bank card and some change.  Then the robbers moved toward the front of the store.

[12]        Mr. Passawe was able to run out through the back door and hide.  Heading toward the front of the store, D.V.J.S. came upon Mr. Crayford and demanded his phone.  Mr. Crayford struggled with him, trying to get the axe.  He was able to pull the toque off during that struggle, during which he was punched by D.V.J.S.  When the attacker cried out for help, Mr. B… provided help by pulling Mr. Crayford off D.V.J.S.  That is when D.V.J.S. struck Mr. Crayford with the axe, raised it again and hit him a second time.  Both blows were with the blunt end of the axe to Mr. Crayford’s head.

[13]        After that, neither gave Mr. Crayford so much as a glance as they struggled with the cash register.  Because they were unable to get it to open, they just picked it up and left with it.

Crayford was murdered in May 2011. D.S.’ case wasn’t finalized till this July, despite the availability of video evidence. An adult co-accused has yet to face trial or deal with his matter.

The other major issue is: How can it be that at a time where the WPS is facing budget cuts that City Hall would be at all still willing to spend a million bucks on this?

More importantly, how can the police board countenance the lost police time and resources that must now be spent examining the proposal and crafting a report for their consideration?

Fielding is right when he says innovation is key if we’re to find greater efficiencies. I totally agree.

But there’s innovation backed by some kind of necessary purpose, and innovation for novelty’s sake or to score a few headlines.

This cop camera proposal falls directly in the latter camp.

If this board is to succeed, it must learn to not fall prey to go-nowhere distractions like this one will end up being.

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Your Winnipeg Police Board, part 1

Winnipeg’s shiny new police board met at city hall today, for what really was its first substantive gathering.

This post is the first of two just noting a few things that likely won’t make the news per se about today’s event.

As with most City Hall meetings, delegations can apply to speak. Today, David Sanders gave a lengthy and laudable presentation to the board.

Laudable, first, because he took the time to actually read the board’s draft policies and procedures in detail and point to a few items of concern.

The presentation, which he kindly sent to me afterwards, is below should you want to read it. And you should.

Among his concerns of note to the public are:

  • The tenor and stricture of the confidentiality agreement members have agreed to as a requirement to sit on the board [posted below in full].  It appears to present a number of challenges for board members in terms of whether they’re ever allowed to say anything, about anything, in relation to board business.

Screen Shot 2013-09-06 at 4.19.25 PM

 

 

 

 

 

This requires a correction. He actually points out the agreement is like one drafted by the city for a consultant being hired to do work.

“The second clause of the preamble is worded so as to muzzle the board members completely, and should be changed …”

  • Then there’s the whole issue of the board having separate sub-committees for finance and governance (Policy 3.8).

The draft policy manual appears to contain no provisions for these sub-boards — which will do important work — to have public oversight and meetings the public could attend.

Look folks, we’ve waited a good long time to have a police oversight body in Winnipeg that’s not either LERA or some watered-down city committee which was more informative and inquisitive about snowmobile bans than where our $240-million a year in policing dollars are going.

It’s solely my opinion — and it’s surely early days yet — but for our police board to not enjoy a great amount of honest and respectable interest and debate advanced by the public at large would be a major missed opportunity.

Part two of this post will focus on some thoughts and perceptions about the board, the meeting and its players.

Sinclair Inquest: (un)Moving pictures

Just a quick update to the missing hospital camera footage situation, which raised a lot of eyebrows and questions.

While my other duties have prevented me from delving further into this myself, many have stepped forward through social media and other means to offer greater details.

First, I’d submit the following Twitter posts from Steve Lambert at The Canadian Press, a colleague of astonishing awesomeness:

[They need to be read in reverse order].

Screen shot 2013-08-30 at 7.25.59 AM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

So, in this instance, there’s a legitimate reason for the missing footage: with the camera zoomed in, and nothing moving, there was nothing to film over the five-minute period. [Although why the camera was zoomed in to this degree is an outstanding question].

We then have colleague Bruce Owen’s short piece this morning on an outside expert’s view of the HSC’s “recording on event” camera system, further corroborating the HSC’s position the missing video is “normal” in the circumstances.

If it’s the case, two of the three questions I asked in my last post appear to be answered to some degree.

The other: how the cop probing the case for a year didn’t notice the missing footage until he was told about it this week, remains to be answered.

I’m still left wondering why the camera didn’t pick up a rush of activity around the ER when staff finally approached to check on him.

Again, quoting CBC:

“The inquest heard a security guard realized Sinclair was not breathing and took him to get help. He was pronounced dead at 12:51 a.m. on Sept. 21, 2008. The security camera footage is missing from 12:47 a.m. to about 12:53 a.m.”

Screen shot 2013-08-30 at 7.42.14 AM

 

 

 

 

 

 

 

 

 

 

I wear no tin-foil hat. But it just boggles that in this case such a key portion of a major piece of evidence the inquest has to work with isn’t there.

We’re often told of the objective value of surveillance cameras in public-safety scenarios, how they “don’t lie” and provide a neutral view of what took place [such as the murder of Gerald Crayford at the Pizza Hotline.]

But here ….

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Gerald Crayford’s murder and the duplicity of despair

Screen Shot 2013-03-27 at 10.56.14 PM “I knew that Gerald Crayford was a hero before his wife, children and other family members read their victim impact statements to me.  From the preliminary inquiry evidence I learned that he struggled to stop a man armed with an axe from robbing him and his employer.  Then the victim impact statements arrived and they gave me a character sketch of what a hero he was in other ways.  But what stood out as I listened to some of the words being read was that I was hearing from angry people yet they were in anguish over the fact that they were so angry.  Their anger gave them neither consolation nor respite and undoubtedly none relished the opportunity to ventilate anger in the courtroom.  Their participation was an important component of the solemnity of the sentencing hearing.”  Judge Rocky Pollack

Maybe it’s just the first anniversary of my dear Dad’s death tomorrow affecting my brain’s beta waves, but having to hear today the sniffles and sobs of people related to a teen who brutally murdered an innocent man for really, no reason, as he was sentenced to ‘life’ in prison really irked me.

Now, my (possibly faulty) assumption is their tears weren’t being shed for the victim, Gerald Crayford, 54, but instead for their young relative in the prisoner’s dock — someone they went so far as to help try and destroy evidence of his hideous conduct after he did it.

“At some point before he was arrested, his sister, mother, grandmother and a friend helped D.V.J.S. hide the axe.  It was recovered by police when the friend decided to notify them.” — Pollack, decision on adult sentence

(I’d still love to know why nobody was charged with obstruction or aiding and abetting, but I won’t expect any answer.)

At least that’s what the timing of the tears in court today suggested to me.

The pitiful sniffles started just after the prosecutor outlined today — once again — the aggravating factors of this absolutely horrific murder of an innocent.

And then they ramped up once again (morphing into sobs), later in the day, as Judge Rocky Pollack passed down the harshest available sentence he was able to.

Some of those aggravating factors included:

  • It was a “planned” event
  • The accused fully expected it to be a 2 on 1 robbery, easy pickings
  • The “significant, gratuitous violence” inflicted on innocent Mr. Crayford
  • A video was made after the robbery “acting out” the crime and comments about how it “felt cool” to kill someone

On the other side of shabby courtroom 404 sat some of Crayford’s family and friends, along with a handful of city homicide cops who wanted to see this one through.

I’ve come to learn over the years this doesn’t always happen. It was gratifying to see the officers there.

Not a single cry or sniffle or sob could be heard from that side of the room.

They instead sat silently, washed over with that sheen of mute blankness and silent resignation I’ve seen infect so many bereft families and friends of crime victims.

Maybe it’s the fatigue from the court process — likely something none of them were familiar with or ever wanted to be. Maybe I’m totally misreading it.

But on the other side — the side of the killer — they likely had to be somewhat in the know of how the system works, given how the offender — the murderer — was on ‘supervised’ probation stemming from a knifepoint robbery of a separate store at the time he bludgeoned poor Gerry Crayford to death inside that nondescript little Pizza Hotline shop a few years back.

I’m not upset at the sentence. It is what it is.

I’m not upset with the lawyers, who performed and acted as professionally as they usually do. in such a serious matter.

I am upset that people who knowingly tried to shield a murderer from responsibility by attempting to destroy evidence had the temerity to show up in a court of law and weep for him; ostensibly weeping for what the system was ‘doing’ to him.

Judge Pollack was clear in his reasons today: the decision to hand this offender the max was directly influenced by what he saw on the store surveillance camera. The level of violence “sickened” him, he said.

It’s these things, combined with the senseless death of an innocent man who never did nothing to nobody is what truly sickens me.

Judge Pollack’s full decision on the case is here. It’s a worthwhile read.

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Hot-potato girl (part three) and our measures of ‘success’

Screen Shot 2013-03-27 at 10.56.14 PMWhen it comes to Manitoba’s youth justice system — and the unbelievably sad kids it often has to try and “fix” — I’ve learned one should take small successes and trumpet them.

And it dawns on me today that the case of K. falls into that category.

I wrote about K. — a high-needs permanent ward of CFS — a few months back. (It’s not her real initial).

Her tale triggered some consternation from regular readers of this blog (one commenter called the process of her case ‘disgusting’).

In a nutshell, K’s story was about what happens sometimes in our youth justice system — and the failures of systemic  concerns outside the court process to live up to the wishes and requirements of the court; that the youth justice act specifically states the criminal justice system is not to be a proxy for child-welfare concerns.

(And her concerns are immense. A short list goes like this: Violent history, FASD diagnosis, ARND, high suicide risk, broken family which “basically abandoned” her, mental illness, anxiety disorder).

You can read what little I know of K’s heartbreaking and concerning story here. And a follow up from a few days later here.

And it didn’t surprise me to learn last week that really, despite all this, nothing changed right away.

K. (remember, she’s 13 and an abuse survivor) was still released from the youth centre to go and live in a downtown Winnipeg hotel as Child and Family Services had no other placement for her.

(It’s partially her fault because her conduct had caused chaos at other bona fide foster placements, at another she was sexually abused and she was removed).

But the fact is the fact. Judge Mary Kate Harvie ordered specifically late last year K. was not to be placed by CFS or the provincial corrections department in a hotel and yet it continued to happen.

Another veteran judge, Marvin Garfinkel, lambasted lawyers and CFS over this continuing to happen in the spring and still, K. gets placed back in a hotel.

And again, this “plan” for her, however temporary the intention was for it to be, just didn’t work.

May 9, 2013: K. is at her latest hotel placement in downtown Winnipeg and a fracas breaks out with a worker over a perceived unfairness involving a cellphone. She lashes out, tosses a glass and hits the worker with it. After heading out of the hotel room, K. smashes a safety window, picks up a fire extinguisher and discharges it at another worker who tries to intervene in the hotel hallway.

Cops are called. She’s hauled off back to the youth centre and held in custody for what was termed a “freak out.” It seemed the cycle was simply doomed to repeat.

But then, something changed. Island Lake CFS came through with a placement on a rural farm. There’s animals there K.’s learning to bond with. She’s given structure and support and monitoring. The plan is she may actually return to school in the fall.

That’s some success you can hang your hat — however cautiously — on. But another success I noted was in how Judge Cynthia Devine treated K.

The relatively new judge, who also says grew up on a farm, spoke to this girl — noticed her, and noticed how this young offender with a horrific background replete with social (not criminal) problems spent two further months in custody till the placement came through.

Devine described this development, rightfully, as appalling. Because it is.

Devine saw how K. could barely utter a squeak, and hunched herself over in a defensive posture in the witness box throughout the hearing.

“It is absolutely no wonder that she comes before the court today having armed herself trying to protect her interests … little wonder that she freaked out. It is sad that she was in custody for so long on these charges,” Devine said.

“I’m appalled that this young girl was in custody for two months.”

Devine saw that the whole proceeding was likely just a bunch of gibberish to K., saying it was probably a “lot of noise” to her.

Devine saw K. And I got the sense her soft-touch approach might have made an impression.

To me, given some of the things I’ve seen over the years in youth court, that’s a success.

*[Edited slightly for typos on July 25 at 9:30 p.m. JST]

Child-protection “a safety net, not a drag net” Queensland child-welfare a Manitoba mirror

(Phoenix Sinclair)
(Phoenix Sinclair)

As players in Manitoba’s Phoenix Sinclair Inquiry prepare to return to hearings later this month to present their final submissions to Commissioner Ted Hughes, a sweeping review of child-protection in the Australian state of Queensland has wrapped up with a full report on problems and solutions now in the hands of government.

From even just  brief reading of the report [presented in full below], those involved in the PSI would do well to give it full, close reading.

It seems there’s an uncanny wealth of analogies to be made between their situation and the one Manitoba’s in.

Some quick excerpts:

1) “The enduring net effect of the implementation of recommendations from previous inquiries has been a systemic shift towards statutory child protection. This shift has been reinforced by a growing risk-averse culture in the department that promotes a forensic, rather than therapeutic, approach to child protection. Instead of investing in family support and other secondary services, departmental funds since 2000 have been directed to meeting the ever-increasing demand on the tertiary system.”

2) “According to most of the indicators currently used by policy makers to measure activities designed to safeguard vulnerable children, Queensland’s child protection system is under mounting stress. Over the last decade:

  • the number of child protection intakes has tripled (from 33,697 in 2001–02 to 114,503 in 2011–12)
  • the number of children in out-of-home care has more than doubled (from 3,257 in 2002 to 7,999 in 2012)
  • the rate of Aboriginal and Torres Strait Islander children in out-of-home care has tripled (from 12 children per 1,000 population in care in 2002 to 42 per 1,000 in care in 2012)
  • children in care are staying there for longer periods (with an increase in the proportion of children exiting care after one year or more from 38 per cent in 2001– 02 to 64 per cent in 2011–12).

In addition, while caseloads for child protection workers have fallen in recent years, they are still exceeding a manageable and sustainable level, and lifetime prospects for children leaving the care system continue to be poor.

Community concern about this unsatisfactory state of affairs led to the current government making an election commitment to review the child protection system with a view to finding the best possible outcomes for our most vulnerable children and their families.

3) “[T]he Commission is convinced by the argument (backed up by evidence) that wherever possible it is better for the child to stay at home — better for the child, better for the family and better for society as a whole. By supporting parents, we not only keep families together but we give parents an opportunity to contribute to their community.

Queensland’s situation is not unique. Similar problems can be found throughout Australia and across the western world. However, Queensland’s fiscal situation has made it imperative that it find out what is causing the system to malfunction, and to identify an affordable remedy.

I note of interest the title of the massive Queensland report: “Taking responsibility.”

I’ll be reading it in full with great interest. July 22 is the date the PSI is due to be back in session.

Dope-dealing kids and perpetuating the false promise of gang life

ImageWhen an adult gets pinched for possession of cocaine for the purpose of trafficking, he’s more than likely envisioning prison time as the picture of what his future will look like, for better or for worse.

A juvenile? Not so much.

That’s even when convicted of multiple counts of trafficking an incredibly addictive drug known for its violent spinoffs and contribution to social decay.

That was evident today during a sentencing for a 16-year-old Mad Cowz gang member who pleaded guilty to not one, but two counts of possession for the purpose of trafficking crack since last fall, along with a joyriding charge and several breaches — many of which had to do with his persistence in handing around with other Mad Cowz.

Mad Cowz have been in the news a fair amount as of late, largely because of a recent police project which took down 10 members of the gang’s so-called “hierarchy.”

If memory serves, five of the 10 were youths. The teen in question was not one of those picked up in Project Recall.

(The project’s work began in earnest — perhaps co-incidentally, perhaps not — after a Mad Cowz-linked fatal shooting of a rival B-Side gang member in a late-night restaurant in February.)

In any event: the teen sentenced today has been out of custody on bail for all but the last few weeks.

In one trafficking charge, he was nabbed Oct. 28 by eagle-eyed cops on Ellice avenue with a garbage bag with 27 rocks of crack inside it after the youth was seen trying to pitch it, and then going back for it when he thought the cops stopped watching.

He also had $260 cash on him. He’s arrested, released from the youth jail but back in, briefly, by Nov. 15, when he breached curfew and was tracked down with the help of a K9 dog and the police chopper.

And then, most recently, he is picked up again May 21 after being spotted on Beverly Street in the company of one of the Project Recall youth suspects, one who was granted bail after his arrest in the project [also a youth].

This time, he’s nabbed holding 16 rocks of crack and $135 cash and a cell phone.

The teen has no record. Therefore, his sentence was pretty much written in stone the minute he started seeking a Crown position: Two years of supervised probation and a relatively stern talking-to by the judge who cautioned him of what he’d be facing if he was just two years older, and how he didn’t believe the offender when he says he was preyed upon by other Mad Cowz members to take part in the gang.

At the end of the day, we have to wrestle with how this sentence in any way stops him from trafficking again, forces him to take the justice system seriously.

It mystifies me, personally.

(And lest we misplace blame, it’s the Youth Criminal Justice Act which really determines how it all shakes out, not the judge nor the lawyers).

And it’s not that I feel he’s getting off light. It’s just that he’s shown he can’t comply on bail, so I question what good a punishment of probation in the community will do for him — and for us.

I also wonder about the message the sentence sends the gang’s higher-ups, who are watching closely how the system reacts to what they’re doing.

That crack doesn’t just come from nowhere.

The revolving door of youths being effectively used by adult offenders to do their dirty work can’t close if the head honchos are perpetually told that the penalties are so light.

The false promise of gang life will continue to be sold.

‘Reasonable Suspicion’ at the roadside? It’s the totality of the circumstances

drunk-drivingIn a way, you gotta feel kind of bad for Rhys Mitchell. In a way.

Charged with drive over .08 in early 2009 , he’s now seen his case go through every level of Manitoba’s courts.

The provincial court convicted him. The Court of Queen’s Bench acquitted.

Now, after many months of deliberations, the Court of Appeal has ruled to re-instate his conviction, setting up a potential Supreme Court battle.

His case is one that affects all Manitoba motorists stopped by police who then enter into an impaired driving investigation.

Mitchell’s case focused on whether the RCMP officer who appeared at his window after pulling him over on Roblin Boulevard early one January morning had grounds to form a “reasonable suspicion” Mitchell may be impaired may have alcohol in his body (see below) and request he blow into a roadside testing/screening device [not a breathalyzer, but an ASD].

 

The overall tension this case presents is clear: On one hand, police can’t, — if they’re to uphold the Charter — just randomly stop and ‘search’ drivers with their ASD test demands.

On the other, they can’t enforce the law and try to keep streets safer if the legal requirements to test people at the roadside are just too onerous.

As Justice Michel Monnin’s 21-page decision to overturn Mitchell’s acquittal shows, the lower courts spent a lot of time fretting over Mitchell’s comments to the officer, namely that he’d had a “couple of beers at a friend’s house” earlier and how that figured into “reasonable suspicion.”

Both those courts also found his Charter rights against unreasonable search and seizure had been breached, but only the QB found the remedy for the breach should be to toss the ASD result.

In the end, Monnin comes to the — in my view — common sense conclusion that it’s the overall circumstances of the stop and totality of the officer’s observations which leads to getting past the “reasonable suspicion” hurdle — that Mitchell’s rights weren’t breached.

From the decision:

I am not prepared to go as far as saying that a simple admission of alcohol consumption by a driver is, in and of itself, sufficient to provide reasonable grounds on which to base an ASD demand, as each case must be considered on its own facts. From a common sense perspective, however, it would be rare, if ever, that there would be an admission of alcohol consumption with nothing else – i.e., evidence as to why the vehicle was stopped, when (especially the time of the day and of the year) and where it was stopped, what was the driver’s condition, how did he or she react to the police, what were the driver’s exact words and how were they spoken, etc. These are all important factors to take into account. It is important to remember that it is the totality of the circumstances known to the officer,viewed together, that must be considered in determining whether there was a reasonable basis for his or her suspicion.

In this case, the trial judge might have found the manner in which the officer conducted his investigation to be wanting, but the facts remain that the accused was driving at night, on a busy thoroughfare, without lights, that there was an odour of alcohol emanating from the car and the accused, inanswer to a legitimate question in the circumstances, acknowledged that hehad consumed alcohol. I find the accused’s answer in this case to be similar to that under consideration by Marceau J. in Kimmel and I find his comments, to which I have previously referred, applicable in this case. Both the trial judge and the appeal judge erred by focussing on the words of the accused’s admission without considering them in the context of all of the evidence known to the officer. In so doing, each misapplied the applicable legal principles, thereby committing an error of law. In my view, after considering all of the evidence known to the officer, he had reasonable grounds to make the ASD demand when he did. It was an error in law by the trial judge to find otherwise.

It’s a fascinating case. Do give it a read: