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 4, 2010 - By Brian Caldwell, Record staff - bcaldwell@therecord.com Police detentions justified, A judge ruled Monday that police had valid reasons to detain, handcuff and search two men during a break-in investigation in downtown Kitchener almost two years ago. Davin Charney and Mark Corbiere alleged in a lawsuit against Waterloo Regional Police that they just happened to be in the area and were illegally held because they refused to identify themselves. But in a 25-page decision after a one-day trial in small claims court last week, Deputy Judge Sebastian Winny found officers acted out of legitimate concerns for safety and on reasonable suspicions the two friends could be connected to the crime. He was also critical of Charney and Corbiere for intentionally involving themselves in the 2008 incident – suggesting they may even have obstructed justice – to further a “personal campaign” against police practices. “Fortunately for them, the police attention they brought upon themselves only resulted in a brief period during which each was detained in a police cruiser,” Winny wrote. Charney, 37, is a longtime social activist who has had numerous run-ins with police during protests over poverty, homelessness and youth harassment. After going back to school to become a lawyer, he has made it his mission to challenge police for alleged wrongdoing, mostly in small claims court. Several of his lawsuits have been successful, or partially successful, with several more planned and pending. Winny agreed with Charney that police have no power to detain or arrest people who simply refuse to identify themselves. But he found Charney and Corbiere — also a social activist — went out of their way to walk between Const. Tanya Natyshak-Cole and a young man she was talking to as a suspect in a break-in on Eby Street. Charney and Corbiere then joined a group of friends across the street and the officer could hear people shouting crude comments. Based on that apparent hostility and the fact it was a rough area, Natyshak-Cole called in another officer, Const. Tim Evans, for backup. Natyshak-Cole had been given descriptions of three possible suspects in the break-in. Corbiere, 24, vaguely fit one of them. Evans approached and asked him to identify himself. When he refused, he was handcuffed, searched and put in the back of a cruiser for about 10 minutes. Charney, who got close to watch what was happening to his friend, was then asked to identify himself by Hatyshak-Cole. When he refused, he was also cuffed, searched and put in a cruiser. Charney and Corbiere argued they had done nothing wrong and were arrested merely because they didn’t co-operate with police. Winny, however, found the officers had grounds to suspect them in the break-in — including their behaviour and refusal to identify themselves. Once they were in custody, the judge said it was also justified to search them for weapons for the sake of police and public safety. “I wonder if Mr. Corbiere and Mr. Charney have any comprehension of the dangers that can be involved in police work even when a lone officer deals with a single potential suspect, much less three potential suspects with four other belligerent persons nearby,” he wrote. Key to the case was a finding by Winny that the two men were subject to “investigative detention,” not actually arrested. Such detentions require less evidence, but must be brief and don’t automatically warrant the use of handcuffs or searches. Winny found that cuffing and searching the two men was justified in this case, however, because the officers had valid concerns about safety. Natyshak-Cole and Evans were faulted for not telling the suspects they could call lawyers, but Winny didn’t award any damages for that oversight. Charney and Corbiere, meanwhile, were ordered to pay police $2,250 in legal costs. That amount was increased, in part, because Charney “brazenly” suggested Natyshak-Cole concocted evidence when she testified. Police declined Monday to immediately respond to the decision. “As always, we respect the judicial process and we would like the opportunity to read the judge’s decision in its entirety and review the results prior to providing a comment,” said spokesperson Olaf Heinzel. Charney was disappointed by the decision and “outraged” by its criticism of his motives, but said he won’t be deterred from questioning police practices. He plans to study the ruling, consult other lawyers and weigh his options for an appeal. “In the courts, we’ll win some, we’ll lose some,” Charney said. “That’s just the way it is.” Home Page - Main Table of Contents - Back up a page - Back to Top [COMMENTS BY DON B. - ] |
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