Kolumn Kop-out

A boil has been lanced in Ottawa, and it isn't a pretty sight. Today's Ottawa Citizen contains an account of yet another police "internal investigation," this time of officers who swooped down on a Somalian restaurant in January 2004, put all the Somalians in cuffs but made an exception for the one white man present, held some of them overnight, allegedly caused physical injury to one co-owner--and all this on the basis of an anonymous call that someone on the premises had a gun, after an argument had taken place with their next-door neighbours.

In July, 2004, Deputy Chief of Police Larry Hill, the happy face invariably trotted out to show the various minority communities that the cops are their friends, stated that the police were discussing an out-of-court settlement, but it never materialized. Now the case is going to the Ontario Human Rights Tribunal, referred there by the Ontario Human Rights Commission.

Here is what the latter has to say: "There is sufficient evidence to indicate that the complainants were subjected to unequal treatment and discrimination because of an intersection of race, colour, ethnic origin, ancestry, age and gender in services." The report of the OHRC goes on to state that the evidence indicates that two of the officers involved in the raid used excessive force.

The restaurant,as I noted yesterday, has gone under. According to the owner, there was a "continuous police presence" around his restaurant, until it was forced to close this past March. "We never had a chance to prove ourselves," he said. Repeated raids did the same to health care worker Tracey Gooden’s dream of having a West Indian restaurant.

Meanwhile, in another part of this increasingly murky forest, the police have presented their side of the Danny Gauthier case that I blogged about over the last couple of days. They are assisted by a particularly witless column by Citizen commentator Kelly Egan, which will be duly fisked in a moment. But first, to the official police account:

Gauthier, according to the internal police investigation, was "uncooperative," and was therefore "grounded." (As a reminder of how this was done, check out this video of the events.) The two officers who did the grounding stated that his hands were under his stomach, resisting attempts to handcuff him. The report claims that Gauthier was in violation of the Liquor Licence Act because he was intoxicated, and that he was trespassing, too, because he refused to leave the Tim Horton’s restaurant where all of this took place.

Constable Shane Henderson, the beefy, menacing-looking fellow in the video, claimed that, before the take-down, Gauthier took his right hand out of his pocket and "raised it in an assaultive and aggressive manner." Both officers admit hitting Gauthier with "close-handed hard strikes" until he was handcuffed. They claim that they were afraid he would get into a van they saw in the parking lot and drive off drunk. And he had refused to answer their questions about whether the van was his, or where he had come from. They claim that they had no idea that he was staying just across the street, until they found a pass key in his pocket after the arrest.

The report also noted that two restaurant employees told investigators that Gauthier was intoxicated, and that one had asked Constable Nesbitt, the first police officer seen in the video, to "do us a favour and kick him out." But the same witness described the arrest as "pretty rough."

One of Gauthier's co-workers was interviewed, and stated that he had had only two or three drinks earlier. He himself claims that he had consumed five beers during the course of the whole evening, and was tired after having seen twenty clients that day. The medical report indicated, however, that Gauthier had been prescribed the anti-depressant Paxil, which should not be combined with alcohol. The report concluded that the two officers had behaved appropriately, being confronted by "an aggressive, intoxicated male who refused to identify himself and refused to comply with their commands."

Now, take another close look at that video, and see how well it conforms to this version of events.

First of all, did he refuse to leave the restaurant? We see Gauthier attempting to leave on three occasions, and being pushed back each time.

Ws he intoxicated? We see him clear off his table, walk to the garbage, and then to the counter: there is no indication of staggering. Indeed, he continues to drink his coffee at the counter, while talking to the two officers.

Did he raise his right hand in "an assaultive manner?" The video shows him, just before the take-down, removing his right hand from his pocket and gesturing, as he talks to Constable Nesbitt. But his shoulders remain down; his body language is anything but aggressive--unlike that of Officer Henderson, which is aggressive from the start and throughout the episode.

The video, in other words, does not appear to back up the officers' claims. As for being "uncooperative," free citizens of the country do not have to answer questions by officious police officers, and it is no crime to refuse to do so. And what business did they have issuing "commands?"

Enter Kelly Egan, in a column (subscriber-only) entitled "Gauthier caused his own troubles."

The piece is laced with sarcasm, stuffed with wrong-headed assertions, and signally lacking in facts. Did Gauthier author his own misfortune to some degree? He's been "rather silent" about that, says Egan, a "perfect angel, surely."

Perhaps Gauthier was silent because he wasn't to blame for his troubles, as the video would strongly suggest. He had dozed off for a few minutes, but, says Egan in his cheap sarcastic way, he was "not drunk, though, he assures. Like me, I’m sure you've had power naps in all-night restaurants. Happens all the time."

Indeed, at 1:00 a.m., which is the time in question, it's not uncommon to see people close their eyes for a while in such places. They can simply be tired, not drunk; but admitting this possibility would undermine Egan's thesis.

"If a constable on patrol finds a sleeping drunk on the sidewalk or in a quasi-public place like a coffee shop," he says, "she has a duty, I would argue, to at least inquire about Mister Sleepy's particulars."

Well, er, no, Mr. Egan, she does not. Her duty is to uphold the law. The question is, was Gauthier breaking it? Notice that Egan has already concluded, on no evidence, that Gauthier was "a sleeping drunk," and compared him to someone passed out on a sidewalk.

"Does the public reasonably expect her to ignore him?" he asks.

Of course it does, unless he was breaking the law. She woke him, and the video shows what happened next. He was not permitted to leave. The two officers put on their gloves and roughed him up. As Gauthier's lawyer said on CBC yesterday, police don’t have the right to come into a restaurant and boss people around.

"It is quite plausible, too...that she asked the staff about the hunched-over man in the loud shirt," Egan continues.

So, without facts to go on, we enter the realm of pure speculation. And we get a clear hint that Gauthier's clothing is more evidence that he was up to no good. I must remember to pitch my collection of aloha shirts next time I'm out and about in warm weather.

Finally, Egan has a lucid moment. "When she rouses him, she is no doubt trying to ascertain whether he is a) he is [sic] drunk or sober; b) conscious or in a coma, and c) open to a gentle suggestion that he retire to a proper bed."

Ah, if only. But, as the video makes plain, no "gentle suggestion" appeared to have been forthcoming, and his attempts to retire to his bed across the street were in vain. It is to be regretted that our intrepid columnist didn't follow up this promising line of enquiry.

Instead, he goes on to suggest that the officer asked for Gauthier's name, and that "he refused to provide it, or answer any other questions about his identity. He can argue Charter rights until he’s blue in the face [black and blue, shurely?--ed.]. In fact, if he's drunk, he may already be guilty of a criminal act."

This is sheer nonsense. He doesn't have to answer an overbearing officer's questions. And look at the weasel-language here: "if he's drunk," "may...be guilty of a criminal act." In fact, it's not a criminal offence to be drunk: Egan should check his Criminal Code before making such stupid claims.

But he rushes on to defend the indefensible, and now blunders into the realm of the absurd. "The man could be a fugitive from the law, he could be in violation of a probation order or a parole condition, he could be a serial rapist, he could be on the FBI most-wanted list."

At this point one can see flecks of spittle on Egan’s lips. "Speaking in the abstract," he goes on, whatever that phrase means, "how would it look--on videotape--if Const. Nesbitt comes across a sleeping criminal in a coffee shop, gives him a once-over and lets him go before finding out who he is and what he's up to?"

Indeed. If a person is asleep, he might be drunk. If he's drunk, he might be a serial rapist. I think I follow. But why stop with someone who's nodded off? Why not interrogate everybody she comes across, in restaurants, on the street, in any public place? They could be bank robbers. They could be serial killers. No wonder the Ottawa Police Service needs more officers.

"In addition," Egan ploughs on, "there seems to be a suggestion that Mr. Gauthier was going to get in a car and drive back to Montreal." Seems to be a suggestion? Certainly the cops claimed this, but on what evidence? Until the man actually pulls out keys and attempts to enter a vehicle, he has done nothing illegal. Suggestions are simply not enough grounds for a beating and an arrest.

Gauthier was a salesman, says Egan, so he "should have been able to talk his way out of a jam. Instead, things got worse." In other words, despite the fact that the video shows a relaxed Gauthier doing quite a lot of talking, his failure to be persuasive is yet more evidence of his guilt.

Then comes the arrest. "[I]t's clear from the video images that he will not submit willingly," says Egan, who has obviously been watching a different video from the one available to us. There was no aggression demonstrated by Gauthier at any time, even though he had now been confronted by Officer Henderson, whose aggressive posture throughout is unmistakeable. Nor is it at all clear why Gauthier should "submit." (Why should any citizen "submit" under these or similar circumstances? This isn't a police state. "Submit," hell.)

Our columnist goes on to speculate about the unpredictable nature of drunks, and then, tellingly, asks how anyone is to know whether Gauthier was drunk at the time. Which, I guess, is the point, but he manages, once again, to miss it. Instead, he concludes:

It does appear that Mr. Gauthier sustained a couple of hard whacks during the arrest. He certainly came out looking worse for wear. Possibly, this was excessive force. Surely, however, this is a byproduct of his own intransigence.

Egan ends his sorry piece by stating that citizens have "a burden...to provide a minimum of cooperation when faced with a police officer's enquiry. Silence cannot be our sole offering." And he cannot avoid one more gratuitous swipe at Gauthier: "[L]ook in the mirror, man: a halo you will not see."

Egan's grasp of civil liberties, shall we say, is tenuous. Ordinary citizens, presumed innocent, are not accountable to police officers who want to flex a little authority or muscle. Certainly their cooperation with the police is reasonable under a wide range of circumstances, even if not mandated by law. But a man dozing off in a coffee shop late at night has a right, it seems to me, to keep himself to himself when awakened, proceed on his way unimpeded, and not be smacked around by police officers with nothing better to do.

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NOTE: The Amazing Wonderdog has some excellent analysis of the officers' body language here and here.