Regina police officer charged with assault of prisoner says he saw pen as a weapon

Regina police officer Colin Magee testified that he felt threatened by a prisoner that refused to drop a pen as he was going through the process of being released.

Magee, a 17-year veteran of the Regina Police Service, was in court Wednesday charged with assaulting 42-year-old Lucien Gaudette on Sept. 26, 2018.

Gaudette had spent the night in cells after allegedly assaulting his ex-wife.

'You sir, are over the top'

Video from the cells played in court Wednesday shows Gaudette and Magee standing opposite one another. Gaudette was getting dressed as Magee explained to him the forms he needed to fill out, including one outlining the conditions of his release.

During his testimony Wednesday, Gaudette said he was not anticipating that his stay in cells would be overnight and consequently had not asked for a blanket or pillow. He said that he was cold that morning, prompting him to leave the processing area to put on a pair of longjohns. He left while Magee was instructing him.

Magee took exception to this, saying that the cells were "my place not yours."

In the video, Gaudette eventually walked back into the processing area where Magee continued to explain the conditions of his release. Gaudette said he was upset that he could not find a shirt he had with him when he was brought into cells. 

Magee told him that one of his conditions was that he was to have no contact with his ex-wife and would not be able to go to a certain address. Gaudette asked how he'd be able to pick up his child. Magee told Gaudeyye he would have to contact a lawyer or member of the law society to communicate with his ex-wife to arrange child care. 

"Do you understand your conditions?" Magee asked Gaudette, who had walked over to the table with the papers on it.

"It doesn't matter," replied Gaudette. He then took a pen off the table, he claimed, to to sign the papers and leave.

Gaudette took the pen off the table, his arms resting at his side. When Magee could no longer see the pen he twice told Gaudette to drop the pen he was using and when Gaudette didn't Magee tripped and pushed the man to the ground.

"I took him to the ground," Magee testified. 

While on the ground on top of the prisoner Magee said "you don't get to f—k around and wander around," and that "you're not the one in charge."

"You sir are over the top with your detainment," said Gaudette.

Magee testified that he had previously been attacked with a pen while processing someone in cells. "I see the pen as a threat to my safety," said Magee.

'We cannot demand perfection'

Crown prosecutor Bill Burge argued that Gaudette replying to the conditions of his release was proof that he understood them, and that Magee's actions were unnecessary. 

Burge asked why Magee didn't charge Gaudette with assault if he felt he posed an imminent threat to assault him. 

"I feel that would have been heavy handed," said Magee.

"After throwing him to the ground?" asked Burge.

"Yes," Magee replied.

Burge said he did not believe Magee had reasonable grounds to think force was going to be used against him and that as such he was not justified in using the force that he did. 

"We cannot demand perfection," said Aaron Fox, representing Magee. "We have to put ourselves in the shoes of Colin Magee sitting down in cells that morning."

Fox said that Magee used reasonable force given what he was confronted with and given his experience in cells. Fox asked that the case be dismissed. 

In an incident report filed by Magee four days after the incident he claimed that Gaudette had raised the pen to shoulder height. The video shown in court did not clearly show this to be the case. 

In October Magee pleaded guilty to assaulting a 13-year-old in an unrelated case. Magee was also been charged with assault in 2017 for allegedly using excessive force in 2016 when arresting James Escamilla. Neither charge has resulted in a criminal record for Magee. 

Judge Patrick Reis reserved his decision until Jan. 16, 2020.