The Crown should align with justice, not the police

By David Tanovich, The Ottawa Citizen December 11, 2010

With heightened public concern over the recently revealed treatment of Stacy Bonds, Terry Delay, Adam Nobody (G-20) and other high-profile cases, people are likely wondering whether police violence is on the rise. The answer is probably no. But that answer is of little comfort. The critical question is why we have not seen a reduction in the unjustified use of violence given the number of positive developments in policing.

Over the last 20 years, there has been a greater move toward civilian oversight of policing including the creation of the Special Investigations Unit (SIU) in Ontario. The video camera is now a staple in police stations and so the police know they are being watched. We have seen a new breed of police chiefs who are reflective and thoughtful leaders. As well, police services have begun to focus on ensuring a diverse force, community outreach, sensitivity training and developing a culture of professionalism.

So why have these developments not had the desired effect? That is a complex question. One explanation is that there remains a police culture of impunity that has yet to be penetrated. It is a culture which leads otherwise good and well-meaning individuals to believe and act as if they are "the law" or "above the law." This is the power of culture over individual will. Until this culture is addressed, any accountability reforms will ultimately fail to have their desired effect.

What often gets overlooked in the discussion of this issue is the role that lawyers, criminal justice academics, judges and juries play in enabling a culture of police impunity.

I want to focus here on the role of one such actor - the Attorney General of Ontario.

The Attorney General has an ethical and constitutional obligation to ensure that his prosecutors remain independent and do not "align" themselves with the police. In some jurisdictions, this line has been crossed. This sends a powerful message to the police to carry on and not to worry because the Crown "has our back" to put it in the vernacular. Consider the following cases.

Last year, the Ontario Privacy Commissioner released her report which examined the practice of Crown jury vetting. Her review found that one-third of Crown offices had asked police to violate our privacy laws and to conduct computer checks of prospective jurors, beyond the required criminal record check. In Barrie, for example, the police were asked to provide any information to ensure that jurors "we" would not want could be removed. As the Ontario Court of Appeal observed two weeks ago, "[t]his use of police resources and attempt to align the Crown with the police is inconsistent with Crown counsel's obligation to ensure that the accused receives a fair trial."

In R. v. Tran, the Crown failed to distance itself from the police misconduct. In that case, the Crown invited an officer to sit with him during the trial and to assist with witness preparation. The officer had gratuitously assaulted the accused when he turned himself in and then destroyed evidence and committed perjury to hide the abuse. In June, the Ontario Court of Appeal stayed the accused's conviction for conspiracy to commit robbery. It issued a stern reprimand observing that the Crown's conduct reflected an "indifference to, if not approbation of, the police abuse and attempted coverup" and that the "Crown's conduct was evocative of an alignment with the police, notwithstanding the abuse."

And most recently in the Bonds case, we see perhaps one of the most egregious instances of "police alignment." As we now know, this was not a case of a young prosecutor making an error in judgment. We have been told that a case management team as well as senior Crowns in the Ottawa office approved her prosecution. So why, upon considered reflection, did they reach their decision when the shocking videotape evidence revealed that she was the victim, not the police? Why did they ignore the very real possibility that Bonds was sexually assaulted by the officers? And why did they ignore that there was, in fact, no offence committed since individuals are entitled to use reasonable force (such as kicking) to resist an unlawful arrest and assault by police? There is no reasonable explanation other than they stepped out of their shoes as ministers of justice to protect the officers.

Who knows how many other cases involving trumped up charges such as public intoxication, assault police or cause disturbance are out there where the Crown is acting out of a concern for the officers and not the public interest? For example, why is it only now that the Ottawa Crown's office has exposed the two most recent cases of videotaped police misconduct? Would it have done this without the chief's request or the public attention?

Ultimately, the conduct of prosecutors is the responsibility of the Attorney General of Ontario who has the power to discipline them and set policy on when a prosecution should be stopped. Where is he on this issue of the crossing of the line? Why hasn't he had the courage we have seen exhibited last week by Deputy Chief Gilles Larochelle to acknowledge that there is a "problem" with many of his prosecutors?

Why has the Attorney General not yet addressed whether or not he will discipline the prosecutors engaged in unlawful jury vetting? Why has he not publicly acknowledged the misconduct in Tran? Why has he taken the extraordinary step of defending the prosecutors in the Bonds case, suggesting that there was a reasonable prospect of conviction?

It would seem that in this province, at least, the Attorney General is the lawyer for the police, not the public interest. And until he fulfils his constitutional role, the culture of impunity will grow.

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