'Professional error' but no misconduct by Winnipeg police officer, judge rules in photographer's complaint

A Manitoba judge has ruled a Winnipeg police officer committed a "professional error" but did not abuse his authority when he seized a photojournalist's camera without a warrant in 2017.

Provincial court Judge Tony Cellitti dismissed all three misconduct allegations against the officer following a complaint by Chris Procaylo, a veteran photographer with the Winnipeg Sun, to Manitoba's Law Enforcement Review Agency.

Procaylo filed the complaint in 2017, alleging the officer unlawfully seized his camera, intimidated him and swore at him as the officer was working at a crime scene on Winnipeg's Main Street on Dec. 2, 2017.

At a hearing on the complaint in 2022, Procaylo testified that when he arrived at the scene after getting a tip, he took photos of a man on the ground being subdued by police. 

He testified that a police officer told him to leave the scene and swore at him. Procaylo said he moved about 50 feet away but stayed on the scene. 

The officer later returned and told Procaylo he was seizing his camera as part of the police investigation. 

Procaylo alleged 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. 

Citing issues with the credibility of Procaylo's testimony, Cellitti's decision, dated Nov. 14, 2023, pointed to differences between what Procaylo said in his 2017 complaint versus what he said in his testimony at a disciplinary hearing in 2022.

The judge said Procaylo didn't contradict himself, but did add details to his testimony that were not in his written complaint or a 2019 affidavit. 

That included Procaylo testifying the officer told him "this is serious, we don't want any f--king pictures, don't need you here distorting" — which was not in his complaint or affidavit.

Neither Procaylo's 2017 complaint nor his 2019 affidavit said that he identified himself as a member of the media to the officers — something Procaylo testified at the hearing he did.

"I have serious and significant concerns regarding the credibility and reliability of the complainant's testimony," Cellitti wrote in his decision. 

Because the "additional details form the essence of the alleged abusive conduct in this case … one would expect the missing details to have been included in the written complaint," he wrote. 

Officer acted in 'good faith': judge

CBC News cannot name the officer because of a provision in the legislation governing LERA — the sole public agency in Manitoba to which individuals can file a public complaint about the conduct of a municipal officer. 

The legislation prevents the publication of an officer's name unless they're found to have committed a disciplinary default.  

Public hearings like the one involving Procaylo — which took years to make it to court — are rare in Manitoba, and only called if the commissioner of the agency refers it to a hearing following a review of the complaint.

The hearing for Procaylo's complaint began in spring 2022 and wasn't concluded until November that year due to scheduling delays. Following testimony from Procaylo, the accused officer and the officer's partner, the judge reserved his decision.

At the heart of the case was the question of whether the officer had the authority to seize Procaylo's camera, and whether Procaylo had properly identified himself as a working journalist. 

The judge ultimately ruled the officer did not have the legal authority to seize the camera, but said the action did not amount to abuse of his authority.

Instead, the judge said it was a "professional error." 

The officer was dealing with a "rapidly unfolding and chaotic scene" and acted in "good faith" when he seized the camera to preserve evidence that he believed would be lost if he didn't act immediately, the judge wrote.

Raises press freedom questions: association

Josh Weinstein, the officer's lawyer, said in a prepared statement his client is relieved this matter is now behind him, after "a long process for all parties involved."

The officer has "always maintained that he did not commit the disciplinary defaults as alleged," Weinstein said.

Procaylo called the decision "profoundly disappointing," and said it has left him deeply concerned about the freedom of the press in this country.

"Journalists need to be able to do their jobs without state interference," Procaylo said in a prepared statement. 

That point was echoed by the Canadian Association of Journalists.

"Journalists belong in these places" and serve "the public's right to know," said CAJ president Brent Jolly.

He called the decision disappointing and highlighted the need for a better understanding of press freedom.

A spokesperson for the United Photojournalists of Canada, a freelance photojournalist advocacy group, said they were also deeply concerned by the outcome of the decision.

Jesse Winter pointed to a 2017 Winnipeg Sun report on the seizure of Procaylo's camera, in which Winnipeg Police Service spokesperson Const. Rob Carver said "it's never appropriate, it's never legal to take a camera."

"The free press is a pillar of Canadian democracy, and this ruling represents yet another crack in that pillar," Winter said in a prepared statement. 

Procaylo says losing the decision after a six-year battle, in which he had pay for his own legal representation, points to problems with balance in the LERA process.

Police officers are granted anonymity and have their legal fees covered by their union, Procaylo noted. 

He called on the provincial government to make changes to LERA's legislation, including appointing a special prosecutor so citizens don't have to pay out of pocket to pursue a complaint.