Scanned, recopied or Internet copy, if there are errors, please e-mail me with corrections: Opening comments: More at the end. The Record (KITCHENER) - May 19, 2010 - By Brian Caldwell, Record staff - bcaldwell@therecord.com Local police lose lawsuit over Police abused their authority when they arrested a Kitchener man at gunpoint after “storming” a house to search for a handgun, a judge has ruled. A gun was never found during the April 2007 raid on Ottawa Street North, part of an investigation by Waterloo Regional Police into a violent youth gang called the Stick-Up Kids. But officers in charge of the operation had decided beforehand to arrest anybody in the house for possession of an unauthorized firearm until it was established they didn’t have or know about one. Deputy Judge Daniel Fife criticized that approach — basically a presumption of guilt rather than a presumption of innocence — in awarding $8,500 damages in a small claims court lawsuit. “I find it shocking that, in a country such as Canada, one could be presumed guilty by the police and . . . be required to disprove it in order to avoid arrest and detention,” he wrote. Fife concluded the arrest of Jason Lamka was unlawful, as were a subsequent strip-search and his detention in a cell for seven hours before being released without charges. Lamka, now 28, rented a room in the house, which was owned by his cousin, Joel Elliott. Police had been investigating the street gang since a brawl at a Waterloo party five months earlier in which a teenager was almost killed. The suspected leader of the gang — based largely on evidence from informants — was a youth related to Lamka. Although the youth was then in custody, his belongings had been moved to the house and he was expected to live there after his release. Concerned about the potential for violence, police applied to a justice of a peace for a “public safety” search warrant to find the gun. The next day, tactical officers wearing balaclavas broke down the door, tossed in flash grenades as a distraction and burst in with assault rifles. Lamka — who acknowledged in court that he has had a rough life and was then out on bail on drug and weapons charges — was ordered face-down on the floor and handcuffed. He was arrested with a rifle pointed at his head despite the fact police had no specific evidence to suggest he had a gun or knew anything about one. Fife noted police didn’t disclose their plan to arrest people when they sought the search warrant in an application that included several errors. Although the warrant was valid, he said, police clearly overstepped their bounds by taking Lamka into custody because of his mere presence in the house. Fife suggested officers could have simply done a pat-down search of Lamka and asked him to leave the house while they looked through it for four hours. “The police no doubt face difficult circumstances every day when they must make immediate decisions and take action which could later be criticized by those of us not in the front lines,” Fife wrote in a 10-page ruling. “However, in this case, the police made a settled decision to arrest any residents . . . when, by their own implicit admission, they did not have reasonable grounds to believe such person had committed a criminal offence.” It is the second time Lamka has successfully sued police. In 2008, he was awarded $750 over his unlawful arrest for public drunkenness. “The way it went down and having the gun pointed at my head, that was pretty traumatizing for me,” he said in an interview Tuesday. “It’s something I’m not going to forget. “The money helps, but it’s more about the principle to show society that there are problems within the police and how they do their investigations. They like to assume.” Lamka was represented by Davin Charney, a social-activist-turned-lawyer who has repeatedly challenged local police over alleged wrongdoing. He said police concluded they were fully justified when Lamka first made a formal complaint to them over his arrest and detention. “This decision points to that system being flawed — you know, police investigating police,” Charney said. He said the result encourages him to pursue other lawsuits — including an outstanding $100,000 claim by Joel Elliott over the same incident — and should prompt a review of police policies. “I don’t think this is just about the individual officers,” Charney said. “It’s a systemic problem.” Supt. Steve Beckett said in a statement that police will consider the decision “to determine if there is any appropriate action required on our part.” He declined to comment on the ruling because of the outstanding lawsuit by Elliott, which was filed in Superior Court in Kitchener. Home Page - Main Table of Contents - Back up a page - Back to Top [COMMENTS BY DON B. - ] |
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