Cop’s actions ‘stupid, but not criminal,’ his lawyer argues

WINNIPEG — A Winnipeg police constable who repeatedly entered an apartment he had been assigned to guard until other officers returned with a search warrant is guilty of stupidity, but not a crime, his lawyer argued Friday.

“I say Jonathan Kiazyk’s actions that night were not criminal actions,” defence lawyer Mike Cook said in a closing submission before King’s Bench Justice Candace Grammond. “Certainly ill-advised, foolish, and stupid, but not criminal.”

Kiazyk, an 18-year member of the Winnipeg Police Service at the time of the October 2022 incident that led to his arrest, is on trial charged with break and enter with intent to steal, obstructing a police officer and breach of trust.

Kiazyk is accused of stealing marijuana from a Stradbrook Avenue Airbnb rental suite while guarding the suite with now-jailed former constable Elston Bostock.

Bostock, 49, was sentenced to seven years in federal prison in January after pleading guilty to a raft of offences, including selling drugs, voiding traffic tickets and providing confidential police information to underworld associates.

Kiazyk, 48, has denied stealing or tampering with any drugs in the suite, claiming he entered the suite three or four times to use the washroom. Kiazyk testified Bostock also entered the suite on his own up to three times before other officers returned with a search warrant.

Court has heard Consts. Sean Kirby-Peloquin and Justin Ison responded to a report of a possible break-and-enter at the building shortly after 11 p.m. on Oct. 22, 2022 and found the male renter on a balcony, locked out of his suite. Officers gained entry to the suite, found a large amount of marijuana, fentanyl and cocaine and arrested the man. Kiazyk and Bostock were assigned to guard the suite until the officers could return with a search warrant.

Kirby-Peloquin and the officers’ street supervisor, then-Patrol-Sgt. Jonathan Ring, both testified they told Kiazyk and Bostock they were not to go in the suite.

Kiazyk testified he thought it was only members of the public that were required to stay out of the suite until the search warrant had been secured, not police officers. Kiazyk said it was the first time in his career he guarded a drug scene.

“In terms of holding a drug scene, he was as green as a rookie,” Cook argued.

Kirby-Peloquin testified that he took pictures of a bag of marijuana and other drugs in the kitchen as well as other items in the suite and told Kiazyk and Bostock so before returning to the police station to prepare the search warrant.

A short time after the search warrant was executed, Kirby-Peloquin alerted Ring to “discrepancies” between a photo Ison took of the marijuana bag and a photo Kirby-Peloquin had taken of the same bag hours earlier, proving that someone had moved the bag at a time no one was supposed to be in the suite. That discrepancy led to prosecutors staying charges against the accused drug trafficker in March 2024.

Cook argued Bostock’s presence in the suite at times when Kiazyk remained in the outside hallway meant Kiazyk did not have “exclusive opportunity” to tamper with the drug evidence.

While there is no question Kiazyk entered the suite when he wasn’t supposed to, he had no criminal intent, Cook said.

“My client’s intent was to use the facilities, and that’s it,” Cook said. “Bostock’s the guy who had the bad intent … That’s the guy who is the culprit here.”

But Kiazyk didn’t just use the washroom while in the suite. Kiazyk admitted to taking a picture of a gun he falsely claimed he and Bostock had found on a bed and texting it to Ring as a joke, telling him they had searched the apartment. A second picture sent to Ring showed a smiling Bostock sitting in a chair outside the suite, pointing the firearm in the air. Court heard the weapon was a non-functional pellet gun the officers had retrieved from their cruiser.

Cook said Kiazyk had a reputation among other officers for being a jokester, but he was not a thief.

“He did go in there and he took those stupid photos and sent the stupid texts as well,” Cook said, but “you cannot take away a man’s career for being silly and taking photos.”

Prosecutor Adam Gingera said the case didn’t boil down to a question of exclusive opportunity, as Cook alleged, but instead hinged on separate confessions Kiazyk allegedly made to Ison and Ring.

Ring testified he spoke to Kiazyk about the incident a couple months later and Kiazyk admitted to picking up the bag of marijuana to look at it.

Ison testified he was partnered with Kiazyk sometime later when Kiazyk told him he and Bostock had taken marijuana from the bag and that it was “really good weed.”

Cook argued both Ring and Ison, who did not take notes of their conversations with Kiazyk, were confusing his comments with separate conversations they had with Bostock.

Gingera said after Kiazyk and Bostock decided to “mess with” Ring, they entered the suite, found the marijuana “and together formed a common plan to take from it.”

“Entering the suite, they willfully interfered with an investigation … by tampering with its continuity, by handling and removing what would be an exhibit in a drug scene,” Gingera said. “(Kiazyk’s) purpose was nothing short of corrupt.”

Kiazyk likely didn’t start his shift thinking he was going to interfere with a crime scene but he “made a decision to do so anyway over the course of his duties that night,” Gingera said.

As a veteran police officer, Kiazyk knew he had no right to enter the suite until a search warrant was obtained, Gingera said.

“He knew what his job was,” Gingera said. “He had been taught since day one to respect the principle of reasonable expectation of privacy.”

Kiazyk chose to prioritize a prank over his duties as a police officer, Gingera said.

Kiazyk testified he didn’t think it was safe to leave the apartment building to urinate because it would mean leaving Bostock alone, possibly exposing him to danger, and that he might have trouble re-entering the building.

But that concern didn’t stop Kiazyk, Bostock or both men leaving their post to retrieve the pellet gun from their cruiser, Gingera said.

“Turning a drug investigation into a playground, going into someone’s private residence for jokes, is a dereliction of duty,” he said.

Grammond will deliver her verdict June 2.

» Winnipeg Free Press