Justice Nancy Backhouse, of the Ontario Superior Court, recently had strong words about the unconstitutional search and inaccurate testimony of police constable Ido Sukman during an application to exclude physical evidence of drug possession in R v Le, 2011 ONSC 6276. Notably, Justice Backhouse accepted the contradicting evidence of Sukman’s partner, P.C. Yang, in finding a deliberate breach of the accused’s Charter rights “that cannot be tolerated because the police conduct brings the administration of justice into disrepute”.
After evaluating the contradictory evidence of P.C. Sukman and P.C. Yang, Justice Backhouse critically commented that “P.C. Sukman’s evidence does not make any sense. I had grave concerns about his evidence as he testified. His version of the facts strikes me as highly improbable and inconsistent with the usual practice.”
Unfortunately, the position taken by the Crown in this case was that the version of events given by P.C. Yang should be found unreliable and rejected. Justice Backhouse disagreed, instead finding that P.C. Yang’s evidence provided confirmation on key factual points in the case: the reason the accused was stopped was not because of his tail lights, but because P.C. Sukman believed that the owner of the vehicle was probably engaged in illicit drug activity, that P.C. Yang was able to see that there was nothing on the passenger seat of the accused’s vehicle, and that P.C. Sukman searched the accused’s vehicle before any drugs or drug paraphernalia were found.
There are two major issues of concern in the circumstances of this case: the illegal searches of Le’s vehicle and person, and the untruthful evidence given by a police officer. The illegal search is an issue individual to this case, for which the remedy was the judicial exclusion of the evidence. However, the inaccurate testimony engenders different accountability issues, and while a court can offer strong words, and charges may follow in rare cases, the underlying systemic problems have not been addressed.
When a search has been found to be unlawful, the court has both a test to measure the conduct, and a remedy to ensure that the unlawful search does not taint the trial. This case, however, reveals symptoms of a larger and more systemic problem. By accepting the contradictory evidence of P.C. Yang and so strongly pointing out the improbabilities of P.C. Sukman’s evidence, Justice Backhouse essentially held P.C. Sukman’s evidence to be false. This is the aspect of the case that has sparked media response. Toronto newspapers noted the case under headings such as “Judge Finds Cop Falsified Evidence” (http://thetorontopost.com/news/judge-finds-cop-falsified-evidence/) and commentary websites bore headlines such as “Canada Judge Tosses Case, Rules Police Made Facts Up” (http://www.officer.com/news/10443994/canada-judge-tosses-case-rules-police-made-facts-up). The problem of false evidence and the need for police officers to report on each other in such situations raises concerns with police culture and accountability.
The testimony given by P.C. Yang played an essential part in bringing the inaccurate testimony of P.C. Sukman to light. The willingness and ability to report and contradict dishonest behavior by other officers is an important function of accountability, yet it is not behavior that has typically been associated with police culture. This begs the question: in cases where the accused’s rights have been breached and inaccurate facts have been used to support the evidence, can the justice system and the public trust that officers will report on or give testimony contradictory to that of another officer? Reports on police culture suggest that such action would likely be met with resistance and discouragement from other members of the police force.
One such report, generated from the combined initiatives of the RCMP Research and Evaluation Branch and the Community, Contract and Aboriginal Policing Services Directorate (http://dsp-psd.pwgsc.gc.ca/Collection/PS64-27-2006E.pdf) talks about “the Blue Code of Silence” embedded in police subculture, along with the pressure not to breach it. The report states that “the code of silence...it is argued, is a part of police socialization [and] imposes negative consequences for those who break it” (page 7 of the report). In a sample of police officers in the United States, questions relating to the code of silence found that 64.7% of officers who report incidents of misconduct are likely to be given the cold shoulder by fellow officers (page 8 of the report). One U.S. report notes that police culture is not only characterized by silence about misconduct, but also “unquestioned loyalty to other officers” (page 12 of the report). Because this code of silence was broken in R. v. Le, crucial findings were made with regard to unlawful police conduct in obtaining evidence against a member of the public.
There is also something troubling about the Crown’s decision in this case, in the face of conflicting police accounts, to urge the court to accept the testimony that would bolster its own case and entirely reject the sworn testimony of another police officer that would support finding an unreasonable search and inaccurate testimony. Such a position would seem to be at odds with the role of the Crown to be an impartial Minister of Justice.
Would some effort in fact-checking and investigation on the part of the Crown have resolved or shed light on the truth behind some of the evidentiary inconsistencies? With regard to the issue of police misconduct and the surrounding culture of silence, the question becomes: beyond strong words, excluding evidence or staying charges, do the courts have a remedy at their disposal to discourage dishonest behavior on the part of the police, or in any way change the culture that enables it?
Posted by Laura Burkitt (Windsor Law III)