Pubdate: Wed, 30 Sep 2009
Source: Lakes District News (CN BC)
Copyright: 2009 BC Newspaper Group
Contact:  http://www.ldnews.net/
Details: http://www.mapinc.org/media/2288
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)

COURT RULES RIGHTS VIOLATED BY LOCAL RCMP

The Honourable Madam Justice Koenigsberg has found that the Charter of
Rights were violated during the 2006 arrest of Southside resident
Andrew Fidler in Burns Lake.

The judgement came down during a trial in Smithers on Sept. 14
2009.

Fidler alleged that his Charter of Rights were violated in two
separate incidents during his 2006 arrest.

First, that there was an insufficient investigation conducted prior to
his arrest.

Secondly when he said that excessive force was used by officers to
gain control of him.

The situation stems from an event on Oct. 19, 2006 when the Burns Lake
RCMP detachment received a call from Southside resident George
Betemps, saying that he had been shot with a pellet gun and hit with a
club like object by Fidler.

Burns Lake RCMP detachment Constables Ferris and MacKellar were
dispatched to investigate. When the officers knocked on the back door
of Fidler's home, one of the constables looked inside through a window
and saw Fidler approaching the door with a crowbar over his shoulder
and a cell phone at his ear.

The officers drew their firearms, ordering Fidler to drop the crowbar
and drop to his knees.

Fidler then complied with the request.

Fidler, who represented himself in court, noted that he had repeatedly
asked that the handcuffs put on him be loosened as he was in a great
deal of pain but was consistently ignored by the officers.

During the detachment booking of Fidler, the officers testified that
Fidler was agitated and thus, they took him to the ground kicking his
feet out from under him, his hands still cuffed behind his back.

Const. MacKellar put his knee on Fidler's upper shoulder area, pinning
his neck to the ground.

Acting supervisor, Const. Esson assisted Const. MacKellar and Ferris
at the detachment during the booking process. Const. Esson
administered punches to Fidler's stomach, ribs and crotch area as part
of what he called in the trial the 'use of force continuum.'

According to Fidler the punches were hard enough to cause him
significant and lasting pain to his rib area.

So much so that he requested to be taken to the hospital the next
morning.

Fidler testified that as far as he could tell the 'roughing up' that
he received was due to the fact that he would not give the officers
his name, rather than because he was being combative.

Const. Esson said at the trial that whatever force was used, was in
the service of pain control or compliance.

Madam Justice Koenigsberg noted that despite the availability of a
video tape of the cell block booking counter area on Oct. 19, 2006
nobody at the detachment thought to have a record of the incident made.

"Until over a month later when it [the incident at the cell block
booking area] has apparently been taped over," Madame Justice
Koenigsberg said.

"During the course of the trial, disclosure of records from the Burns
Lake RCMP detachment was a continuing problem," Madam Justice
Koenigsberg said.

The lack of disclosure of evidence and documents to the court was so
bad that the court had to order the entire file regarding the incident
to be delivered.

"The effect of the late disclosure, lack of disclosure, lack of record
keeping and what can only be described as a somewhat cavalier attitude
toward documentation of violent incidents, coupled with the accuracy
and truthfulness of Fidler's evidence brings me to my decision," Madam
Justice Koenigsberg said.

"I find that the manner of his [Fidler] coming to the door, coupled
with the nature of the complaint by Betemps of an aggravated assault
using a pellet gun and a club of some kind, rendered the constables
actions appropriate preventative methods," said Madam Justice
Koenigsberg.

The judgement was not the same in the second incident where Madam
Justice Koenigsberg found that excessive force was used in subduing
Fidler and therefore the actions of the RCMP are in breach of the
Charter of Rights.

"I do not believe that he [Fidler] actually posed a threat to the
constables justifying punching him as described, such that he was
taken to the hospital the next day in serious pain."

"There is no remedy available for the Charter breach in these
circumstances," Madam Justice Koenigsberg said.

The final issue addressed by Madam Justice Koenigsberg was the
subsequent search and seizure of items from Fidler's residence.

Const. Ferris had returned to Fidler's residence to search for a green
truck, as described to be driven by Ferris at the time of the attack
on Betemps.

Const. Ferris located a truck matching the description, noting that
there was a club in the truck, but did not seize it for lack of a warrant.

Const. Ferris testified that he smelled marijuana and moved closer to
the house where the smell seemed stronger.

He then phoned the Burns Lake RCMP detachment and he was advised that
he could not investigate further.

After asking Fidler, who was then in the cells, if he would allow them
entry into his home and being refused the constables took Fidler's
keys, which had been seized during his arrest, and entered his home
finding a relatively small marijuana grow operation.

All plants and equipment were subsequently seized.

"A remedy for Charter breaches that occur in this type of situation
would be the restitution of the unlawfully obtained property, however
the remedy is not available when that property itself is illegal,"
said Madam Justice Koenigsberg.

Constables Ferris, MacKellar and Esson, while still working for the
RCMP are no longer based at the Burns Lake Detachment.

Fidler has been placed on a one year peace bond with relation to this
incident.

[Sidebar]

On Aug. 28, 2008 Fidler was involved in another incident with the
Burns Lake RCMP detachment. Burns Lake RCMP officers attended to a
residence on Uncha Road as a result of a previous break and enter and
trespass. Upon arrival Fidler exited the residence and spoke to the
two plain closed officers in attendance. Fidler was then identified as
a person with an outstanding warrant and was advised that he was under
arrest.

He then attempted to flee.

Fidler was apprehended and a physical confrontation
occurred.

As the arrest was being made a 48 year old female, identified as
Southside resident Janet Reemeyer, exited the home with a high powered
rifle and attempted the stop the arrest.

A short time later, after police had left the scene with Fidler, she
was observed driving north on Hwy. 35. Police attempted to stop her
with negative results.

A pursuit ensued. The suspect was then stopped at a second check stop
on the highway at the Gerow Island bridge.

Reemeyer did not respond to police commands, locking her truck doors
requiring police to physically remove her from the truck.

Charges were laid and both suspects were held in custody. Files were
not available from the Attorney General at this time for the outcome
of this incident 
- ---
MAP posted-by: Richard Lake