Justice David Berg lambasted Ottawa Police Service Constable Corey Bourguignon for lying under oath when he ruled Vincent Lebrun’s Charter rights were violated so egregiously the evidence against him must be excluded.
That evidence was, according to news reports, a grenade launcher.
“There is no excuse for a police officer not knowing this basic tenet of our constitutional law, a section that governs a significant part of the interaction between police and the people with whom they deal,” Justice Berg said.
It’s not the first time a judge has called out the Ottawa Police Service for ‘a pattern of delaying’ a suspect’s immediate right to counsel, nor will it be the last.
On May 18, 2019, Constable Bourguignon testified he stopped a vehicle with Quebec license plates because the driver took too long to move when a traffic light turned green.
Bourguignon also testified he ran the plate number but nothing of significance showed upon his computer terminal.
Under an intense cross-examination by defence attorney Brett McGarry, Bourguignon ‘suddenly remembered’ the registered owner of the vehicle had a weapons prohibition order against them.
Constable Bourguignon is not fluent in French and he claimed the information returned from the license plate check were hard to decipher.
Throughout his testimony, Constable Bourguignon insisted the only reason he stopped Vincent Lebrun’s vehicle is because Lebrun was slow move after the traffic light turned green.
Nobody bought the story Constable Bourguignon attempted to sell.
Justice Berg ruled that Constable Bourguignon attempted to conceal the fact he knew about the weapons prohibition. Worse for Constable Bourguignon, he ruled this was the only reason Bourguignon pulled the vehicle over in the first place.
“How did I come to that conclusion?” Justice Berg asked rhetorically.
“First of all, there was Mr. Bourguignon’s lack of candour about when he learned of the existence of the (weapons) prohibition and the manner in which he testified about it. Initially, while testifying in chief, he seemingly denied any present knowledge of having been told about the prohibition prior to getting out of the (police) car.”
“It was quite clear to me by the end of (Bourguignon’s) testimony that he had been trying to hide this from the court.”
From the news report written by Gary Dimmock:
Bourguignon testified that he searched the car under the Cannabis Control Act after the eagle-eyed officer spotted a rolled blunt in the door handle when he looked through the window, but, after his evidence and contradicting testimony by a fellow police officer, the judge said: “I have grave doubts, however, that he observed it in the manner that he says he did.”
“I do not accept (the police officers’) explanations,” said Berg, who noted that the warrantless search of the car was unreasonable.
Bourguignon later testified that he found a “replica handgun” in the glovebox and then pointed it to the ground and racked the slide to clear the chamber to prove it empty and safe. The officer testified that the “replica handgun” was clearly stamped as a BB-gun, but he figured it could still be used as a weapon or a replica gun and maybe it could have been modified.
“I do not believe him. There are just too many problems with his evidence. Moreover, the pistol was obviously a legal BB-gun. The expert evidence was that this was not a replica firearm,” the judge said.
Then there was the conflicting testimony of two Ottawa Police Service constables.
Both Constable Bourguignon and Constable Eric Swanson testified they found a BB gun in the glove compartment and racked the slide to ensure it was safe.
Both constables were being less than generous with the truth.
In an instant-classic cross-examination, McGarry had Swanson try to rack the slide of the seized BB-gun, but he couldn’t because it was broken. Both officers said the clearly-marked, legal BB-gun had a barrel, but one of their colleagues — a firearms expert — testified there was no barrel and it took a second to realize that it was a legal BB-gun and not a replica.
Then the constables searched the vehicle’s trunk and discovered a grenade launcher.
Defence attorney Brett McGarry said the actions of the Ottawa Police Service “raises red flags when a car of racialized young men are pulled over for not driving forward at a green light for a couple seconds. But racial profiling is very hard to prove and there was not quite enough evidence for the court to make that finding here. There were still so many problems with the police version of events that the court ruled that the search of my client was a blatant and intentional violation of his Charter rights.
“The thing to remember is that, for every Charter violation that is exposed, there are hundreds that go undetected. The real question is what system the Ottawa police have to deal with cases where officers have misled and hidden facts from the court because there does not appear to be any.”
These constables illegally detained and searched the defendant’s vehicle.
They compounded their Charter violations by refusing to allow the defendant immediate access to an attorney.
While the Canadian Charter of Rights and Freedoms apparently does not apply to senseless COVID-19 restrictions, it is somewhat refreshing to learn the Charter still applies to police constables who perform illegal traffic stops, illegal searches and blatantly refuse to allow a person to contact their attorney.
In time, perhaps a higher court will rule the Charter applies to all government actions, not just the ones deemed necessary in a ‘pandemic’.
It is not known if Ottawa Police Service Constable Corey Bourguignon will face any internal disciplinary actions for his blatant attempt to mislead the court.