Manitoba's police complaints process needs change, lawyer says in closing arguments at misconduct hearing

Closing arguments were heard Wednesday at the public hearing for a Winnipeg police officer accused of misconduct against a photojournalist.

Chris Procaylo, a photographer for the Winnipeg Sun newspaper, filed a complaint with Manitoba's Law Enforcement Review Agency, or LERA, in 2017, alleging the officer unlawfully seized his camera, intimidated him and swore at him while he was working at a crime scene on Main Street in Winnipeg.

At the heart of the argument is whether the officer had the authority to seize Procaylo's camera and whether Procaylo properly presented himself as a member of the media during his interactions with the officers.

"The media has the right to document and report and they have a right to be free of seizure when they do so," Procaylo's lawyer, Nicole Watson, told the court Wednesday.

Josh Weinstein, the officer's lawyer, warned that the arguments brought forth by Watson downplay the seriousness of the situation, which involved police officers providing medical care to a dying man.

"The conduct was obstructive and not professional by Mr. Procaylo," Weinstein said on Wednesday.

"So to hold this up as the police coming in, infringing and taking a photographer away, that is an extreme generalization."

CBC News cannot name the officer because of a provision in the legislation governing LERA, which prevents the publication of the name until the judge has made a decision in the matter.

Both Procaylo and the police officer testified in May, during a four-day hearing before a provincial court judge. Closing arguments were delayed until Wednesday due to scheduling conflicts.

Procaylo filed the LERA complaint shortly after the incident on Dec. 2, 2017, alleging the officer committed three acts of disciplinary default during their interaction: abuse of authority by conducting an unreasonable seizure, using oppressive or abusive conduct or language, and being discourteous.

The agency is the sole public body in Manitoba to which individuals can file a public complaint about the conduct of a municipal officer. 

Public hearings like the one involving Procaylo are rare in Manitoba, and only called after the commissioner of the agency reviews the complaint and refers it to a hearing to determine its merits. The last one was held in 2017.

Different versions of events

The officer testified in May that Procaylo acted like a "freeman of the land" — someone who didn't recognize authority and didn't follow his instructions when the officer was trying to secure a crime scene.

The officer testified he was forced to seize the camera because there could be potential evidence that might help investigate what became a major crime scene involving a death.

"I was uncomfortable with him having access to that camera due to his level of unco-operativeness," the officer said.

Procaylo offered a much different version of events, telling the court he immediately identified himself as media, listened to the officer's instructions and was just trying to do his job. 

"I felt disappointed, threatened and intimidated," Procaylo testified in May. "I felt like I was being prevented from doing my job."

Lawyers for both sides said Wednesday the credibility of each person's testimony is one of the key decisions the judge will have to make.

Weinstein pointed to inconsistencies in Procaylo's complaint to LERA and his testimony in May.

He also said it was "alarming" that Procaylo's initial LERA complaint didn't mention that the officer swore at him.

Watson said the testimony of the officer lacked credibility because it was only corroborated by his partner, and they were able to write their notes together and be interviewed together by a LERA investigator.

LERA complaint can be 'an awful difficult process'

Watson used her closing arguments to highlight the gaps in the legislation that guides the Law Enforcement Review Agency, echoing similar concerns that have been raised for years about LERA.

She pointed out that someone who files a LERA complaint must pay for their own lawyer or represent themselves, and that a complainant must file motions to compel police to produce evidence. 

"Unless they are fortunate enough to have legal counsel, it is an awful difficult process," she said. "That is very different in the prosecution of other professions." 

She urged the judge to include "broad recommendations for change" to the agency's legislation as part of his decision.

"From the individual police officer's perspective, the act may appear to be purely disciplinary in nature, but it has a much broader public purpose," she said.

"It is designed to promote both respect for the police and respect for the individual."

Provincial court Judge Tony Cellitti will deliver a written decision on the matter at a later date.

If the officer is found in disciplinary default, the possible penalties include termination, reduction in rank, forfeiture of pay or a written reprimand.