An arrest at a Burnaby mall two years ago ended “frantically” after the suspect pulled a loaded handgun out of his waistband while officers were wrestling him to the ground, according to facts presented in court.
Luis Manuel Baez, 25, was in Vancouver provincial court Monday for sentencing after pleading guilty in October to carrying a loaded prohibited firearm and obstructing police.
On May 18, 2021 at about 4:30 p.m., Metro Vancouver Transit Police officers approached him in an underground parking lot at the Metropolis at Metrotown mall, according to agreed facts presented by Crown prosecutor Jim Cryder.
The plainclothes officers had spotted Baez about 40 minutes earlier smoking what they believed was marijuana in the parkade, and they intended to ticket him for violating the Cannabis Control and Licensing Act.
While they were talking to Baez, however, he suddenly took off running toward a Honda Accord parked nearby.
He got into the car, but the officers grappled with him to keep him from starting it.
He managed to jump out but was eventually wrestled to the ground.
That’s when officers saw him pull a loaded semi-automatic .45 calibre handgun from his waistband, according to Cryder.
“A wild confrontation occurred, as the offender while prone on the ground held the loaded handgun outward with his right arm, while police frantically tried to control the offender and the firearm,” Cryder said. “Police used hard force to effect the arrest.”
The handgun never went off and eventually ended up under a parked car.
Baez was originally charged with one count of obstruction and multiple firearms offences but pleaded guilty to just two.
Cryder noted he was already under two lifetime firearm bans at the time and had a “very significant” related record.
Cryder called for a prison sentence of four-and-a-half years minus credit for time served.
“Certainly the public deserves some additional protection with respect to Mr. Baez, given his repeated behaviour with loaded handguns,” Cryder said.
But defence lawyer Kristy Neurauter said a sentence of three years, minus credit for time served, and two years of probation would be more appropriate.
Neurauter pointed to possible police misconduct, which could potentially have gotten Baez acquitted if he hadn’t pleaded guilty.
She said the section of the Cannabis Control and Licensing Act used by the officers to justify stopping Baez didn’t apply to the situation and that meant their attempt to detain him was unlawful.
She said the fact the officers waited 40 minutes from the time they allegedly saw Baez smoking marijuana to the time they approached him suggests the cannabis ticket was “little more than a ruse” used to investigate him for other criminal activity without sufficient grounds.
Neurauter noted police had surveilled Baez during his 40 minutes at the mall with help from the mall’s CCTV, but said the officers’ notes didn’t specify any observations they made during that time or what offence they had seen him commit that could justify stopping or searching him.
‘Alleged gang affiliation’
B.C. provincial court Judge Ellen Gordon said she was “very troubled” by the police report.
“At best it demonstrated a complete misunderstanding by every single police officer on that unit of the law,” she said.
While it might have been in the public interest to stop Baez to get a loaded handgun off the streets (his arrest happened amid a rash of deadly shootings linked to the Lower Mainland gang conflict, and Transit Police said Baez had “alleged gang affiliation”), Gordon said the courts aren’t allowed to apply the concept of “the ends justify the means.”
Gordon said Baez’s guilty plea was a “very mitigating” factor since he might have been acquitted if he had argued police had violated his Charter rights.
But Gordon said she couldn’t ignore the fact Baez had been walking around a busy shopping mall with a loaded handgun while he was already under two lifetime firearm bans.
“It is a very potentially dangerous situation, particularly when I consider that, apparently, he felt he needed that firearm for protection, which tells me it could have been used,” Gordon said.
Baez has been in jail since his arrest.
Gordon gave him enhanced credit for time served and sentenced him to spend another six months in jail, to be followed by two years of probation.
During his probation, he will be banned from Metrotown mall and will have to take counselling and complete 50 hours of community work service.
Gordon also slapped Baez with another lifetime firearm ban and issued a stern warning:
“You got a break today. If for some reason you touch a gun again, I’m telling you, just for touching it, the starting point is five years from the most lenient of judges. It could end up being 10; it could end up being 12.”
Follow Cornelia Naylor on Twitter @CorNaylor