LEAP Blog

Ottawa Police Association Considering Equipping Officers with Cameras

2012-01-10T23:06:00.001-05:00

In response to growing concern over the use of racial profiling and excessive force within the Ottawa Police Service, the Ottawa Sun reports that the new president of the Ottawa Police Association, Matt Skof, believes that this misperception would be dispelled if officers were outfitted with small personalized cameras recording their interactions with citizens.

Skof denies that racial profiling exists amongst Ottawa police but contends that the measure is nevertheless necessary to protect officers, result in cost-saving for the City of Ottawa, and restore public confidence in the police. This comes in the wake of several high-profile civil claims against Ottawa Police for racial profiling and police brutality. In the cases of ChadAiken, Stacy Bonds, TerryDelay and RoxanneCarr, video recordings show Ottawa police using what is being argued amounts to excessive force and unconstitutional search techniques.

In June 2011, the Ottawa Police Service approved a newpolicy aimed at preventing and responding to officers engaging in racial profiling and discriminatory treatment. The police was drafted with the assistance of LEAP.

Posted by Jeremy Tatum (Windsor Law III)

Improving Transparency and Accountability

2012-01-10T20:59:00.000-05:00

With Project Accountability, acting Chief Al Frederick has demonstrated that he is prepared to respond to the public demands for accountability and transparency following allegations of police misconduct including the vicious beating of a local doctor and attempts to cover it up.

The blueprint for change and its 27 recommendations should lead to significant change in both culture and procedure. In particular, the adoption of the more liberal definition of "serious harm" which triggers the duty to report incidents to the SIU, enhanced training, new conflict of interest rules, organizational review and a comprehensive external policy review that will be conducted by the OIPRD are all salutary measures. The acting chief has shown strong leadership and should be considered as a viable candidate to be the next chief.

However, other actors in the justice system such as judges, Crown attorneys and defence lawyers also play an important role and must respond appropriately to police misconduct.

If, for example, the police believe that Crown attorneys will not report their misconduct or that judges will not make findings of misconduct or denounce it through appropriate sentences, any efforts by police administration will be thwarted.

Any blueprint for change must include these key actors.

It must also be acknowledged that there are human rights issues facing the WPS that need to be remedied. For example, unconstitutional strip search practices, allegations of discrimination, and the recruitment, retention and promotion of female, racialized and lesbian, gay, bisexual and transgender officers.

Former chief Gary Smith was a leader in his commitment to changing the human rights culture of the WPS. He partnered with many organizations including the Ontario Human Rights Commission, Windsor Law's LEAP (Law Enforcement Accountability Project) and EGALE (Equality for Gays and Lesbians Everywhere) to bring about change. He faced resistance to these initiatives and there is likely a change-resistant faction happy to see him gone.

So in addition to Project Accountability, here are some additional ideas that could form part of the blueprint for greater accountability and transparency:

* Commit to the human rights audit by the Ontario Human Rights Commission of practices and procedures initiated by former chief Smith, and implement the commission recommendations.

* Investigate the feasibility of a policy requiring all officers on duty and in the field (including officers employed by private organizations like bars) to wear a camera installed on their uniform. Technology now serves as the greatest engine of accountability as we saw with both the David Van Buskirk and Brad Snyder cases. The camera will protect officers from unwarranted accusations as well as to capture misconduct. It will also protect officers from abuse and violence as individuals will know that they are being videotaped. The head of the Ottawa Police Association has recently recommended that Ottawa implement a similar measure.

* Request that a Crown attor-ney be assigned to vet all cases involving police-initiated charges such as assault police, resist arrest, cause disturbance arising out of interactions with accused. The chief should be notified of any case where the Crown believes that the officer has used these kinds of offences to shield their misconduct and the charges should be withdrawn.

* Require the Crown Attorney's Office to notify the chief of any case where there is a judicial determination that an officer has engaged in misconduct or has provided false evidence. The chief should be required to notify the Police Services Board of all such communications from the Crown and how the matter has been dealt with. The Toronto Police Services Board is considering a similar policy.

And finally, the Windsor Police Services Board should consider moving its meetings out of the police station to more publicly accessible and friendly locations. Members of the public are much more likely to attend in these circumstances. And to gauge the concerns of the public and effectiveness of any reforms initiated, it should invite yearly deputations from community groups, experts and other interested individuals to provide information about issues surrounding the delivery of services.

Windsorites are proud of their police service. It has a strong record in crime reduction, building community relationships and moving the service forward to meet the challenges it faces.

With Project Accountability and consideration of these recommendations, it should not be long until public trust is restored.

David M. Tanovich is a professor of law at the University of Windsor and academic director of the Law Enforcement Accountability Project (LEAP).

New Leadership, New Initiatives for Windsor Police

2012-01-10T20:54:00.001-05:00

On December 23, 2011, Windsor Police Chief Gary Smith announced his retirement from the force. His decision to retire came amid numerous allegations of brutality and misconduct by Windsor police officers, public outcry over accountability for the actions of police officers, and heavy criticism of Smith for his handling of recent allegations of police misconduct. As of the date of Smith’s retirement, the Windsor Police Service was facing $72-million in lawsuits, with thirty cases alleging police brutality. Since 2006, mainly through out of court settlements, Windsor Police has paid over $820,000 of taxpayers’ money to victims for malicious prosecution, wrongful arrest, and assault lawsuits. Public discontent with the actions of many officers and the Service’s handling of allegations of police misconduct has been palpable.

Several high profile cases, including a $14.2-million lawsuit against the Windsor Police Service by Dr. Tyceer Abouhassan, have led to a shaken public confidence in the city’s police. Dr. Abouhassan alleges he suffered a beating at the hands of Det. David Van Buskirk, and was subsequently charged with assault in what his lawyer has called a cover-up by police to protect an officer. Det. Kent McMillan is charged with discreditable conduct for failing to conduct a fair and impartial investigation of the incident involving Dr. Abouhassan and is also charged with deceit for filing a false report in the case. Regarding the public’s outrage at the Windsor Police Service’s recent alleged action, lawyer Andrew McKay, who currently represents Det. Van Buskirk, contends that police are merely visible targets for these allegations and that misconduct is found in every field of work.

This view that Windsor Police are merely more exposed in the public eye than others is not widely shared. Windsor Mayor Eddie Francis has joined public discontent, and has stated that the frequency in which Windsor Police vehicles are involved in crashes has caught his attention. In an interview with the Windsor Star, Windsor Law Professor David Tanovich stated that even judges are increasingly speaking out against police officers.

Since Smith’s resignation, acting police Chief Al Frederick appears to be taking steps toward the right direction. Since his role as acting Chief, he has been outspoken over the need for change within the Windsor Police Service. In a news conference, he bluntly stated that in terms of transparency and accountability for Windsor Police, the “status quo is not the path forward for the Windsor Police Service”. He went on to say the Windsor Police Service will no longer “thumb its nose” at the Special Investigations Unit (SIU), amid recent accusations by Ontario Ombudsman Andre Marin that the Windsor Police Service has both delayed and failed to report numerous incidents involving police misconduct. Frederick has additionally responded to four SIU letter’s originally ignored by former Chief Gary Smith, but stated that Windsor Police Service’s failure to report certain incidents were a result of a difference in the Police Service’s definition of “serious injury” from the SIU.

Frederick has furthermore introduced Project Accountability, a 27-measure initiative including enhanced police training, new rules regarding conflict of interests, organizational and external policy reviews conducted by the Office of the Independent Police Review Director, and a more liberal definition of the term “serious harm”. The initiative also includes plans to move the professional standards branch out of Windsor Police Headquarters. In an interview, Frederick stated that moving the branch, which is in charge of investigating public complaints, was made in an effort to reduce the public perception of intimidation of those reporting complaints.

Frederick’s promises of change have so far appeared genuine, and as he stated, many of the 27 measures have already been implemented. It will be interesting to see whether these steps in the right direction lead to the kind of transparent and accountable police force the public desires. But, as Professor Tanovich noted in a recent op ed in the Windsor Star, other actors in the justice system, including judges, Crown attorneys and defence lawyers, also play a crucial role in properly addressing police transparency and accountability, and should thus be considered in any plans to bring about change.

Posted by Benjamin Dillon (Windsor Law I)

Eviction aggression in the United States potential forewarning for Canadian Movements

2011-11-27T00:27:00.001-05:00

In recent weeks it seems that members of the “Occupy” movement have overstayed their welcomes and evictions have begun to be carried out. November 15 saw police officers evicting the resisting protestors situated in Zuccotti Park in New York City. There were some reports of arrests numbering approximately 70 and others of officers tear gassing, handcuffing, and dragging people by their hair from the site. Opinions are split about the appropriateness of these actions, the scope of the right to peaceful protest, and whether or not the occupiers should have been forced out to begin with.

The more troubling news however, has come in recent days with information about violent evictions and large-scale pepper spraying incidents. For example, on November 18th police were called to the University of California’s Davis campus, making arrests and using pepper spray in the process. The spray however, was not used to control unruly participants, but was sprayed directly in the faces of 10 to 15 participants that were sitting submissively in a row on the ground. One woman was subsequently taken to the hospital to be treated for chemical burns as a result. Videos that captured the events outraged and antagonized protestors amongst the movements. One such video can be found at the following link.

http://thelede.blogs.nytimes.com/2011/11/19/video-of-police-pepper-spraying-u-c-davis-students-provokes-outrage

This begs the question - what will happen in Canada? Occupy movements here have already experienced evictions as well. If protestors are legally evicted and refuse to leave, should police officers be allowed to take similar action to that which was taken in California? Will protestors and police officers alike be particularly on edge because of the memories of G20? Do protestors have the right to be on the defensive and should police officers proceed with added caution?

Posted by Melissa Crowley (Windsor Law II)

Google Denies Request to Take Down Police-Brutality Video

2011-11-08T17:52:00.000-05:00

Google has recently revealed that it has refused the request of a U.S. law enforcement agency to remove a YouTube video that contains acts of police brutality. Although Google did not disclose information about the enforcement agency’s request to remove this video, it recently revealed in its Transparency Report how similar requests have been increasing in recent months.

Google’s most recent TransparencyReport cited the following with respect to a petitioned video:

We received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove. Separately, we received requests from a different local law enforcement agency for removal of videos allegedly defaming law enforcement officials. We did not comply with those requests, which we have categorized in this Report as defamation requests.

In the report, Google stated that the request to remove content was one of thousands made by governments around the world, including requests from the Government of Canada. Google stated that there have been 16 requests by the Government of Canada for the removal of content from Google services in the past year, 44% of which Google either removed fully or partially. It additionally reported that amid increased government requests to remove content, Google continues to follow its company policy of hosting content, including videos containing police brutality, unless presented with judicial rulings for the removal of specific content.

Google’s decision not to remove content containing police brutality may be particularly relevant today, as the recent Occupy protests across North America have produced a growing number of online videos of police violence toward protestors. A video surfaced recently that showed former Marine Scott Olsen being carried away from an OccupyOakland protest after being struck in the head by a tear gas canister, which left him in critical condition. Footage of this incident posted on YouTube has in part led to rallying of the Occupy Wall Street for greater police accountability in dealing with the protestors.

As the Occupy movement spreads across Canada, Google’s decision to host videos of police interactions with protestors may prove instrumental in promoting police accountability and transparency during these growing protests. It will be interesting to see whether Google will maintain their policy of hosting sensitive content as government requests for their removal continue to increase. It will also be interesting to see whether the Canadian parliament and/or judiciary addresses this issue in the future, and whether law will be enacted to facilitate the removal of content including police brutality.

Posted by Ben Dillon (Windsor Law I)

Case Highlights the Need to Break the “Code of Silence” Amongst Police Officers

2011-11-08T17:44:00.000-05:00

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)

Windsor Mayor Concerned About Police Brutality Lawsuit and Claims of a Cover-Up

2011-10-29T13:57:00.006-04:00

This week the Windsor Star reported that Windsor Mayor Eddie Francis has publicly expressed his concerns about the integrity and accountability of the Windsor Police Force in response to allegations that officers attempted to cover up the brutal assault of local doctor Tyceer Abouhassan. When asked about the allegations contained in a $14.2 million lawsuit filed in the Superior Court on September 29, Mayor Francis replied, “I am not happy” and “I would share the fact that I do have concerns”. Abouhassan claims that on April 22, 2010, he was minding his own business while jogging from the train station to the Jackson Park Medical Centre in Windsor when he was approached by a man that later turned out to be Det. David Van Buskirk. The officer was not dressed in uniform and at no time identified himself as a police officer.

After accusing Abouhassan of harassing a young girl in the park, Van Buskirk apparently proceeded to break Abouhassan’s nose, detach his retina and give the doctor a concussion. The Statement of Claim states that when Abouhassan regained consciousness, he overheard Van Buskirk reporting that an officer had been assaulted and requesting a prisoner transport vehicle and ambulance. Van Buskirk then searched Abouhassan’s back-pack and continued to detain the doctor before an ambulance arrived to transport him to the emergency room at Hotel Dieu Grace Hospital.

The lawsuit asserts that after Van Buskirk realized his mistake about the culprit’s identity, he knowingly provided a false occurrence report to justify the illegal assault, detention and search of Dr. Abouhassan and that other officers backed up Van Buskirk’s claim that Abouhassan attacked him first. However, video surveillance and eye-witness accounts corroborated Abouhassan’s description. Additionally, two Windsor Police Officers, Det. Sgt. Patrick Keane and Det. Sgt. Paul Bridgeman, contacted Abouhassan’s criminal lawyer on separate occasions in an attempt to broker a deal to withdraw the assault charge against Abouhassan if he did not file a formal complaint with the Office of the Independent Police Review Director (OIPRD) or pursue criminal charges against Van Buskirk. After Abouhassan refused the two offers to broker a deal, an Information was sworn against him by Det. Kent McMillan.

The Statement of Claim reports that Abouhassan subsequently filed complaints with the OIPRD alleging misconduct on the part of Van Buskirk, Bridgeman and Keane, and that ultimately the OIPRD made findings against Van Buskirk for discreditable conduct, excessive use of force and unlawful arrest and deceit under the Police Services Act. McMillan was found to have committed discreditable conduct and deceit, and Bridgeman discreditable conduct and neglect of duty.

Mayor Francis, who heads the Police Services Board, indicated “many people are forming their opinions and are concerned” about what occurred. However, the Mayor could not comment more than that until the matter makes its way through the courts.

Van Buskirk was charged criminally with assault causing bodily harm and public mischief. Meanwhile, the charges against Abouhassan were stayed by the Crown on June 15, 2010. Police Chief Gary Smith, who is also named in the lawsuit, said on Thursday that the Force “has been as open and honest as possible” since the allegations arose. While he too is concerned about the Force’s reputation in light of these events, the Chief urged the public not to lose confidence in or pass judgment on the rest of the police service “based on the actions of some”.

Posted by Jeremy Tatum (Windsor Law III)

Police Too Quick To Taser?

2011-10-29T13:24:00.001-04:00

On April 7, 2011, an eleven year-old boy was tasered by Prince George (BC) RCMP following his suspected involvement in the stabbing of a 37 year-old man at a group home. Immediately following the incident, little was known or released about what prompted the police to taser the boy. Six months later, it was discovered that the boy in fact suffered from a heart condition, bipolar disorder and hearing impairment. During the incident, the RCMP was negotiating with the boy to come out. The boy appeared in a second-story window with what appeared to be a knife. He ran the object along his sweatshirt, arms and hands. The RCMP then witnessed the boy make cross-like gestures, which stood as a last straw for the RCMP before they decided to taser him when he came out. The boy negotiated for some clothes and when he came out, he was tasered. It was later seen that the boy did not have a knife in his hands, but rather, a pen.

At first glance, it seems that the RCMP were out-negotiated by an 11 year-old boy who faced mental health problems. Rather than calmly or alternatively trying to negotiate with the boy, or perhaps find out more about his situation, the RCMP resorted quickly to using a taser. It is understandable that the RCMP were trying to protect the boy from himself and from themselves. However, by using a taser so quickly, they failed to consider the potentially fatal side effects, in particular on the boy’s heart condition. The RCMP also failed to verify whether the boy in fact was holding a weapon at all before deciding to taser him. It begs the question of whether this 11 year-old boy really posed a threat to the RCMP at all.

Given the boy’s mental health condition, of notable interest would be to look into whether the RCMP has been provided with adequate training in handling situations of this nature. It is possible that the RCMP misinterpreted the boy’s signals or the boy was unable to comprehend the RCMP officers’ demands. Would this then be sufficient grounds for the RCMP officers to resort to tasering the 11 year-old boy? It is tough to see in any situation involving an 11 year-old why the RCMP would resort to tasering. It is even more compelling in this situation where the boy faced several mental health disorders.

An investigation was launched into the conduct of the Prince George RCMP officers involved. In charge of the investigation was the West Vancouver Police Department (WVPD), headed by Chief Constable Peter Lepine, a former RCMP officer. Of particular concern here is who is acting as a check on the power of the RCMP? From what it seems, the WVPD is not an entirely independent unit, and thus cannot really provide an “objective” inquiry into the RCMP. The issue of tasering is already contentious – can the RCMP be held truly accountable for their actions if investigated by the WVPD?

In the end, it was declared by the WVPD that the conduct of the Prince George RCMP did not violate the Criminal Code. However, few details of how this decision was made were given. Consequently, how can we as the public be satisfied with the results of this investigation? Although the initial story caused mass public discourse and debate, the results of the inquiry into the RCMP has seemed to go undetected. The detailed considerations that went into the WVPD investigation were not made transparent to the public. The length of time between when the incident occurred, and when more details were provided (6 months later) seems entirely unreasonable and did not allow for the public to remain informed.

It is also important to note that separate investigations by independent groups were also launched, including that of the Commission for Public Complaints Against the RCMP, and one by well-known BC Representative for Child and Youth, Mary Turpel-Lafond working alongside the BC Ministry of Child and Family Development. Results of these investigations have yet to be released but perhaps when they are, they will shed a more objective light on the situation.

Posted by Audrey Wong (Windsor Law)

Police Autism Database a Step in the Right Direction

2011-10-14T16:32:00.001-04:00

The Windsor police have partnered with Autism Services Inc. to create an online registry that will help give quick access to detailed information about how to deal with individuals with Autism Spectrum Disorder (ASD) during emergencies. It is modeled after the registry that was created in Ottawa in 2010 and is to be updated annually in order to keep the information current.

People living with an ASD develop differently from others in the areas of motor, language, cognitive and social skills. Each person with an ASD is unique and will have different abilities but often there are problems communicating and ritualistic actions involved with an ASD. This means that police officers may encounter someone displaying erratic, repetitive behaviour that seemingly refuses to listen or communicate with them. This has caused huge problems in how these officers choose to handle the situation, especially if they do not recognize these as signs of autism. With the creation of the registry, residents that live within the Windsor policing jurisdiction can fill out forms that can be used to inform police how their child communicates, what their particular triggers are, and how best to approach them in order to get them to co-operate.

This is particularly important for use with the number of children with ASD that wander off and need police assistance but it is also important given situations that have been seen in the media lately. In August of this year, Toronto police became involved with a situation with a 9-year old boy with ASD in a daycare centre because he had become uncontrollable in a classroom. After ordering the boy to lie down on the ground, which he complied with, they handcuffed him until he calmed down. Many saw this as a highly inappropriate response. Given the fact that children with autism remember patterns so precisely, a damaging interaction with police like this can traumatize them and affect any interactions with police officers in the future. It is uncertain whether a registry would have helped in the situation. Likely, even more in depth training is required for police officers in dealing with people with ASD and other similar disorders.

In light of these events, should every police service be required to have an Autism Registry? Is this enough or should there be more detailed mandatory training involved?

Posted by Melissa Crowley (Windsor Law II)

Windsor Police Service Strip Search Practice “Troubles” Court

2011-08-22T19:02:00.000-04:00

Ten years ago the Supreme Court of Canada overturned the drug conviction of Ian Golden and set out constitutional limits and guidelines on the ability of the police to strip search suspects. Last week, Justice Renee Pomerance, of the Windsor Superior Court of Justice, heard “disturbing” evidence that Windsor Police are strip searching approximately 50 percent of those arrested on drug charges. However, no records are kept of the number of searches where no evidence is found and so it is hard to know the actual number and who is most likely to be searched and under what circumstances. This troubled Justice Pomerance as well as the fact that there is no prior authorization from a senior officer practice.

In R. v. Golden, the Court confirmed that reasonable and probable grounds to arrest do not ipso facto confer automatic authority for the police to carry out a strip search. Further,

99 In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest. […] [P]olice must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter.

114 Where the circumstances of a search require the seizure of material located in or near a body cavity, the individual being searched should be given the opportunity to remove the material himself or the advice and assistance of a trained medical professional should be sought to ensure that the material can be safely removed. In this case, the plastic wrap was located between the appellant’s buttocks. The police had no way of knowing whether it was physically lodged inside him in such a way that it could not be safely retrieved without medical intervention. Nevertheless, the arresting officers undertook to remove the package themselves, through physical coercion and forceful probing and tugging at the package, and by instructing the appellant to “let it out” and to “relax”. The risk this presented to the appellant’s health was made more acute by the fact that after the appellant accidentally defecated […]

116 We particularly disagree with the suggestion that an arrested person’s non-cooperation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety. If the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter rights. Any application of force or violence must be both necessary and proportional in the specific circumstances. In this case, the appellant’s refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances.

Justice Pomerance was presiding over the Charter application of Bart Muller to exclude evidence, including 39.5 grams of crack, 23.7 grams of cocaine and 12 oxycondone tablets hidden in his buttocks, from his trial for three counts of possession for the purpose of trafficking.

While the court ultimately found the evidence against Muller admissible because the police had reasonable grounds to strip search – for example, they were acting on the tips of two informants, money and paraphernalia were found on or close to Muller, and he was evasive with police, Justice Pomerance observed that the officers’ failure to provide privacy and dignity was by "no means trivial”. Contrary to the guidelines in Golden, Muller was entirely naked, in less than private conditions and not given the opportunity to voluntarily remove the baggie when strip searched at the police station.

However, Muller was not the only individual strip searched as a result of the police investigation. After Windsor Police obtained a warrant to search the Detroit Street apartment Muller was said to be occupying, three men and a woman visiting the property were taken into custody and strip searched. All were released without charges after no evidence was found on their person. Yet, as defence counsel discovered after requesting disclosure, no record of the strip searches could be found. A Windsor police officer had permitted the police video to be destroyed.

Justice Pomerance noted that the illegal searches of these citizens and failure to keep records of the incidents was both “disturbing” and “unacceptable”. Moreover, it gives the appearance that a “disproportionate number of strip searches are being carried out by the Windsor Police Service”. Consequently, the court recommended that the Windsor Police Service revise its training procedures and strip search policy to conform to constitutional standards.

Windsor Mayor Eddie Francis indicated in an interview with The Windsor Star that he “take[s] the comments made by the court very seriously”, and that he and the Windsor Police Services Board “will raise those issues and ask for a response.”

Of course, Windsor is not the only jurisdiction with evidence or reports indicating that the number of strip searches by police is sharply increasing. According to the Toronto Star, Toronto Police Service’s own statistics reveal that at least 60 percent of the 50,000 arrested in 2010 were strip searched, which represents a spike of 28 percent since 2001 where almost 21, 000 more arrests were made. Chief Bill Blair attributes the apparent influx to more detailed accounting of strip searches, and maintains that every situation is assessed on a case-by-case basis. Yet, the same statistics report that the Toronto police came up empty-handed in 70 percent of the strip searches performed in 2010.

Some, including John Sewell of the Toronto Police Accountability Coalition, intimate that the high percentage of searches and empty results suggests that “inherently humiliating and degrading” searches (Golden at paras. 89-90) are becoming routine and being done to “belittle” and “humiliate” people, not for investigative purposes. Sewell suggests that if police are trained to and spend more time conducting better pat down or frisk searches to see if someone is hiding something in his or her underwear, there would be less need to proceed to level three strip and cavity searches. The Toronto Police Services Board has asked Chief Blair to prepare a report on the force’s policies and practices on searches and how they could be improved.

The recent high profile cases of Stacy Bonds, Sean Salvati, and David McPhail have also called into question police accountability and suggested that strip searches are being used to humiliate and intimidate. In March, Ontario’s Special Investigations Unit charged Sergeant Steve Desjourdy with sexual assault in connection with the cellblock strip search of Stacy Bonds.

McPhail’s case made headlines in June when Justice June Maresca threw out breathalyzer evidence obtained after McPhail was arrested for driving while impaired by alcohol and over-80, and unnecessarily strip searched. The explanation a police officer offered to the court for the strip search was that a cell phone was found in McPhail’s shoe and there might be something else secreted on him. Again, no records were kept of the search, and no approval to strip search McPhail was sought from a staff sergeant. Ultimately, Justice Maresca found that the police conduct “both in conducting the strip search and in attempting to hide it at trial” made the seriousness of the state conduct and impact on the accused’ Charter protected rights “especially egregious”. After the evidence was excluded, McPhail was acquitted. A spokesperson for the Peel Police Service stated that the force will “look into” the court’s findings of misconduct.

In spite of widespread calls for increased police training and reporting when it comes to conducting searches and the ensuing litigation that the taxpayer is left on the hook for ten years after guidelines were issued to the police and public, what should be done to streamline compliance and police accountability?

Posted by Jeremy Tatum (Windsor Law III)

Crown Withdraws Charges After Court Raises Concerns About Racial Profiling

2011-07-10T19:46:00.000-04:00

Two victims of what one judge described as racial profiling are relieved that the Ottawa Crown Attorney’s Office exercised its discretion in withdrawing all charges during a preliminary hearing on June 23.

Jordan Noel, 22, and Loik St-Louis, 24, were stopped on Rideau and Waller streets in August 2010 while driving Noel’s mother’s Cadillac. According to St-Louis, the officer in charge, Constable Robin Ferrie, never advised the pair why they were being stopped or detained.

Provincial Court Judge Dianne Nicholas heard from Cst. Ferrie that the Cadillac was part of a random spot check under the Highway Traffic Act, but, when pressed by Justice Nicholas why he called for backup, Ferrie noted that the men were in a high drug area and alerted the officer’s suspicion because they did not make eye contact with him as Ferrie drove by. Yet later in cross-examination Ferrie conceded that his investigation notes made no mention that not looking at him is what raised the officer’s suspicion. Instead, the notes indicated that “suspicious males in a vehicle in a high drug area” and “two young males driving a Cadillac” were the reason for the stop.

Ferrie went on to testify that Noel nervously explained the vehicle belonged to his mother and, according to Ferrie, too promptly handed over his license and registration, casting further suspicion in the officer’s mind that the vehicle might be stolen.

However, Justice Nicholas was quick to question that line of reasoning asking, “how many white women do you stop in the market just because they’re driving a car? How many in the last month?” Ferrie was unable to provide the court with any estimate or example.

Moreover, “Because two black guys in a car don’t look at you, you’re calling for backup? […]You’re going to check whether he has permission from his mother to drive a car and two other police cars show up, like come on?”, asked Justice Nicholas. Ferrie noted that it turned out Noel’s mother had not known her son had taken the vehicle.

While the two continued to be detained and Ferrie conversed with Noel’s mother using the number Noel provided the officer, the two backup officers arrived on scene. One discovered five grams of crack cocaine, thirteen grams of marijuana, a drug scale and approximately $1,685 in cash during a search of the vehicle. All items were seized and taken into property. The two were arrested, taken into police custody and formally charged. The cash would later go missing in the police evidence room, though Noel and St-Louis were repaid earlier this week.

In the landmark decision in R. v. Brown, Morden J.A., for the Ontario Court of Appeal, critically observed at paras. 8 and 44 that:

The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping. […] A racial profiling claim could rarely be proven by direct evidence. […] Accordingly, racial profiling […] must be done by inference drawn from circumstantial evidence.

The court went on to accept that a finding of racial profiling is capable of being supported where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why she or he singled out the accused person for attention.

With the charges facing Noel and St-Louis, although Justice Nicholas heard no direct evidence of racism on the part of Constable Ferrie, she inferred from the evidence before the court that it sounded like the two had been racially profiled.

Following the lunch recess when both parties returned to court, the prosecutor announced the Crown would be withdrawing all charges. “I think that’s an appropriate use of your discretion”, replied Justice Nicholas.

Of note, the Crown Policy Manual requires that when considering whether or not to continue the prosecution of a charge, Crown counsel must determine if there is a reasonable prospect of conviction and, if so, whether it is in the public interest to continue or discontinue the prosecution

It would seem that having been alerted to some of the same concerns expressed by the court, Crown counsel was alive to his or her duty as a Minister of Justice to ensure that the criminal justice system operates fairly to all, including the accused, victims of crime and the public. (R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.); R. v. Cook (1997), 114 C.C.C. (3d) 481 (S.C.C.))

Posted by Jeremy Tatum (Windsor Law III)

Toronto Police Service Releases G20 Policing Review

2011-06-27T18:25:00.000-04:00

On the first anniversary of the Toronto G-20 Summit, the Toronto Police Service released a 70-page “after-action” report into the policing of that weekend.

The report boasts of many successes, including ensuring the safety of the G20 summit delegates and security of the summit sites at all times, but also recognizes that lessons were learned about improving officer training to more efficiently respond to “widespread criminality and mass public disorder”.Chief Blair also points out that the Toronto Police Service was given only “six months to plan for the largest security event in Canadian history”, and “there were no critical injuries or deaths during the G20 Summit”. Although the report later reveals that of the 1118 people arrested, at least “five suffered injuries that they required to go to the hospital”.

The report provides an operational chronology into the related events, activities and peaceful and violent demonstrations in Toronto during June 18 – June 27 that the public may not be aware of and which explains some of the many individual arrests the police made. However, on the highly publicized mass “kettle” or sweeping arrests that have been the subject of much media attention, legal actions and Charter challenges, Chief Blair highlights the need to improve training and communication during operations so that officers can “more effectively respond to criminal activity and public disorder” at the investigative, arrest and processing stages.

This likely comes in response to the fact that some prisoners went hours without food and water, and faced delays of up to 36 hours before being taken before a Justice of the Peace and speaking with a lawyer, which the report described as a “breakdown in communication”. The Toronto Star reported last Friday on the story of one man that was allegedly arrested in relation to the G20 and strip-searched.

Some, including well-known criminal and constitutional lawyer Clayton Ruby, have been quick to dispel time and training as justification for being unprepared and overburdened. “They spent a billion dollars, it is not possible for them to be overwhelmed […] my daughter could do better.”

The Canadian Civil Liberties Association (CCLA), a national organization constituted to promote respect for and observance of fundamental human rights and civil liberties, describes the G20 as the dawning of a new era of policing techniques being foisted on the legal system and a “test of our accountability mechanisms, whether they work appropriately and whether they are sufficient. And they are not.” The CCLA argues that given the volume of identifiable police officers and forces involved in the G20, a single body is necessary to review their conduct and impose sanctions where appropriate.

Chief Blair’s report indicates that “108 officers have received disciplinary action for removal of identification” and “1 officer was charged under the Criminal Code for Assault with a Weapon”. Yet, the report does not disclose the nature of the disciplinary action and internal investigations the Toronto Police Service’s Professional Standards Unit is managing or supporting.

While the report does include ten laudable recommendations for improving the Toronto Police Service’s ability to police future large-scale events, the report does not address or answer many outstanding questions that linger after the G20. Improving communication within the Force and to the public, police training and policy will certainly help, but more will be required to ensure events do not repeat themselves and those guilty of wrongdoing are held accountable.

The apparent disregard of policies governing officer identification, use of force and searches during the G20 poses serious questions about how effective policy and deployment reform will really be in ensuring that the police “respect the democratic right of individuals to demonstrate” and “freedoms of thought, belief, opinion, expression and peaceful assembly”. For example, the report does not go on to clarify why protocol was not followed for the kettling containment technique, which requires that “persons not involved in the event must have both a route of egress from and the opportunity to leave the affected area”.

The contention that mass arrests be undertaken to disperse crowds to prevent a small number of vandals breaching the peace is unlikely to pass constitutional scrutiny. Consequently, in a report entitled Caught in the Act, which was released in December 2010, Ontario’s Ombudsman Andre Marin labeled the G20 policing as “the most massive compromise of civil liberties in Canadian history”.

However, the Ombudsman also singled out Toronto Police, and the Chief in particular, for refusing to cooperate with his investigation into the “secret” Public Works Protection Act legislation and policing surrounding the G20 Summit. Now that Chief Blair and the Toronto Police Service have pledged to “cooperate fully” with independent reviews by the Special Investigations Unit, Toronto Police Services Board, Office of the Independent Police Review Director and former Chief Justice Roy McMurtry on behalf of the Province of Ontario, it remains to be seen how that will help bring about reform in the aftermath of the G20 and lawsuits facing the Toronto Police Service.

Posted by Jeremy Tatum (Windsor Law III)

Testilying to secure a conviction

2011-06-23T18:58:00.002-04:00

Recent cases involving fabricated evidence and ethical violations by police officers is giving cause to wonder, once again, if officers are going too far to get convictions. Last week Brampton Superior Court Judge Douglas Gray threw out the case of a man accused of 17 charges related to the prostitution of a 17-year-old girl. In R. v. Salmon, Justice Gray wrote that several Peel Region police officers fabricated evidence in an attempt to ensure a conviction against the accused.

It was suggested that the officers conferred with one another to make it appear as though the fake ID the girl used to work in sex clubs was found in the accused’s wallet. Other evidence produced at trial showed that the ID was actually turned over to the police at the station by the girl when she first arrived to make a complaint. If the ID had been found in the accused’s wallet it would have shown that he had a measure of control over the girl, which is essential for a conviction on several of the charges he faced.

Judge Gray singled out two of the officers pointing out that they had opportunity and motive for the falsification. Both had seen the accused charged with these offences before, only to have the counts stayed or dismissed. And both had ample opportunity to view and correct the incorrect evidence list but failed to do so.

While the Crown suggested that this was simply an error by an inexperienced officer who was overwhelmed, the Judge disagreed, concluding that this was deliberate and there was no available remedy short of a stay of proceedings that would be appropriate.

When is it all right for a police officer to incorrectly file evidence? Do we not expect officers who have completed training and begun work to be fully prepared regardless of how long they have been active? The ‘inexperienced’ officer involved has been with the force for about 6 years, not exactly a veteran but certainly experienced enough to know that evidence must be logged accurately as to where and how it was recovered. In suggesting inexperience as a reason for this behaviour the Crown is failing to recognize the severity of the conduct and brushing it off as an excusable mistake.

Two unrelated but similarly concerning ethical scenarios also involve officers from Peel Region. In one, a superior officer was charged with perjury, three counts of obstructing justice and three counts of breach of trust, in relation to the trial of a fellow officer on drug charges late last year. In the other case, an officer was charged in connection with a fraud investigation after allegedly staging car collisions in furtherance of insurance claims for damage.

While it is commendable that these officers are being identified and charged to the full extent of the law it is difficult to understand how the justice system is supposed to function when our most trusted members of society fail to work within the system and follow the law. We all want to see truly guilty people convicted but the rules of evidence are there to protect the innocent, and it can be hard to remember the old adage that it is better to let 12 guilty individuals go free than to let one innocent person suffer.

1. Do police officers receive enough training in evidence rules?

2. Is there a better way to monitor and train police ethics?

3. Are cases like this a result of a lack of faith in the adversarial process?

4. Is there a systemic problem of testilying by police officers?

Posted by Pamela Santora (Windsor Law II)

Not just a ‘wake-up’ call for Quebec

2011-06-23T18:36:00.000-04:00

The recent report on Racial Profiling and Systemic Discrimination of Racialized Youth by Quebec’s Commission des Droits de la Personne et des Droits de la Jeunesse (Commission for Human Rights and the Rights of Youth) has received substantial praise from experts, authorities and community members since its release on March 25, 2011.

This report is the product of months of public hearings, at which seventy-five individuals, including researchers, community members, and representatives from various organizations and institutions, gave testimony, presented research, and offered analysis on racial profiling in Quebec’s public services. The Commission’s purported aim in this fact-finding mission was to ‘find solutions, not assign guilt’ in regards to racial profiling in Quebec’s Public Security Sector, Education Sector, and Youth Protection System.

In relation to the Public Security Sector, the Commission specifically recognized that “numerous studies have demonstrated that security forces, and notably the police, tend to scrutinize and suspect racialized minorities more often, without factual or valid grounds, and punish them disproportionately in the application of laws and by-laws”[Report, p.10]. With this in mind, the Commission explored an impressively broad range of topics relating to racial profiling in the context of policing and public safety. Firstly, the Commission examined “targeted scrutiny of racialized minorities”, including: racial profiling in the context of the fight against criminality and street gangs, the fight against incivility and the discretionary application of municipal by-laws, under-protection of racialized persons by the police, recognition and prohibition of racial profiling in laws and policies, data collection, supervision of police actions, and partnerships and accountability; secondly, the Commission investigated “recourse available for citizens”, including: the Police Ethics Commissioner’s system, Criminal Investigations of police incidents involving severe injuries or death.

Evidently, there is a great deal to be garnered from the Commission’s findings and 93 recommendations, which include ‘sweeping changes’ to the Quebec Charter of Rights, the Police Act, the police code of ethics and calls for more sensitivity training and an increase in the hiring of minorities.

Overall, this report is certainly deserving of all the accolades it has received and the Commission should be commended for this groundbreaking endeavour.

Whether the recommendations come to fruition, and lead to improved policy, procedures, and legislation is, however, an entirely different question. It is not clear whether this report, like most policy reports, will be a catalyst for significant reform and ultimately alter the behaviour of individuals. However, there is no question that the very existence of this report is a step in the right direction, as is the Commission’s realization that individuals who have experienced racial profiling want “an increase in society’s awareness of what they experience, along with an acknowledgement of the need for change and the implementation of concrete actions”[Report, p.3].

It is imperative to recognize, however, that the Commission’s findings apply not only in Quebec; all of Canada stands to benefit from this report and all Canadians should take heed of the recommendations.

Specifically, all Canadians should take note of the Commission’s finding that there is a significant dearth of data on racial profiling, particularly in the Public Security Sector. According to the Commission, the Kingston Police Service’s systemic data collection project is the only one of its kind. This fact is distressing. Without proper data to outline the nature and breadth of racial profiling as a problem, we cannot devise effective solutions; accurate data is crucial to all efforts to end racial profiling. Furthermore, as highlighted by former Kingston Police Chief W.J. Closs, data collection has many incidental benefits. Collecting data helps individual police officers develop to a “self-critical” attitude, which will enable them to better identify their own biases [Report, p. 37]. Given the high value of data collection, one can only hope municipal police services in Quebec, and across the country, follow the Commission’s recommendations and start collecting and publishing data on racial profiling.

Moreover, Canadians need to acknowledge that racial profiling affects a great many people in our society on a daily basis. The prevalence of racial profiling is clearly demonstrated throughout this report, and is most succinctly expressed in the report’s preface by a few choice words from a mother in Montreal, who states it is “normal to get pulled over” and she regularly warns her children to avoid the police. This mother’s statements illustrate that racial profiling and, more broadly, discrimination on the basis of race, remain pressing issues for many Canadians.

Finally, it is important for all Canadians to recognize that ending racial profiling requires action be taken beyond the individual level. It is not enough to reprimand individuals after a complaint is filed, instead we must seek to prevent racial profiling before it occurs, and consequently systemic reform is essential.

The true impact of this report remains uncertain; it is unclear whether the Commission’s recommendations will receive due consideration in Quebec and throughout the country, or whether this report will simply gather dust on desks of civil servants. Whether the former or the latter occurs will depend to a large extent on the existence of progressive leadership within our public institutions. One can only hope that this report receives the consideration it deserves and the necessary reform follows; the development of policies, procedures and organizational structures that ensure all Canadians receive equal treatment when interacting with public services would certainly be worthy of praise.

Posted by Ashley Henbrey (Windsor Law II)

LEAP wins 2011 Student Social Justice Project of the Year

2011-03-30T10:20:00.001-04:00

First human rights finding of Aboriginal profiling

2011-03-18T17:58:00.004-04:00

In a landmark decision, the Ontario Human Rights Tribunal has concluded that the police treatment of Garry McKay during a bike and id check constituted racial profiling. Some of the relevant excerpts of the tribunal's decision include:

...

[2] The complainant, Garry McKay (“McKay” or “the complainant”), self identifies as an Aboriginal man. He alleges that he was subjected to racially biased policing by the personal respondent, Christopher Fitkin (“Fitkin” or “personal respondent”), a police officer with the Toronto Police Service. The Complaint stems from an incident in the early morning hours of July 9, 2003, when police stopped and questioned McKay and a friend while the two men were walking in a laneway. During the encounter, Fitkin investigated McKay and McKay’s bike and, soon thereafter, arrested McKay for possession of stolen property (the bike). Eventually, McKay was released, however, McKay alleges that Fitkin threatened to re-arrest him if he did not produce a receipt for the bike.

[3] The personal respondent submits that, given the time of the day and the laneway location, the police questioned McKay and his friend as a matter of routine patrol. McKay was initially arrested because a police records search indicated that a bike, bearing the same identification number as McKay’s, was stolen. Fitkin later released McKay because further searches revealed the bike was reported stolen in Winnipeg.

...

Summary of Prima Facie Findings

[160] In summary, the evidence indicates that Fitkin’s instant distrust of McKay exerted a powerful hold over how the encounter evolved, and led Fitkin to arrest McKay for the wrong bike. In particular, it appears that Fitkin’s heightened suspicions derailed consideration of the available information that substantiated McKay’s explanation and established that McKay’s bike was not the reported stolen bike. I find that Fitkin hastily arrested McKay based on erroneous and deficient information. I also find that McKay was required, despite being released, to submit proof of the bike receipt. I further find that the officers undertook unnecessary and multiple criminal records searches of McKay post release.

[161] I conclude Fitkin’s investigation and the arrest were shaped by negative stereotypes of Aboriginal people being untrustworthy and involved in criminal activity. I reach this conclusion based on the specific and overall circumstances of the case against the backdrop of the social context evidence confirming the pervasive negative stereotypes about Aboriginal people lacking credibility and prone to criminality. See Williams. I am persuaded that, taken as a whole and/or at the individual stages of the encounter, there is a prima facie case that the interactions between Fitkin and McKay were permeated by racial bias and stereotyping, now necessitating an explanation from the respondent.

[162] I accept that McKay’s perception that he was subjected to unfair treatment and was unduly scrutinized. I found McKay to be a respectful and sincere witness. He provided his testimony in a clear, honest manner, and he had a reasonably good memory of the alleged events, which, based on his evidence, clearly affected him. I accept that McKay felt especially vulnerable and targeted because of the arrest and his fear of re-arrest.

...

CONCLUSION

[201] To sum up, I reject the personal respondent’s explanations and conclude that Fitkin treated McKay in a racially biased manner because of the following factors:

• Fitkin’s instantaneous disbelief of McKay’s explanation of his presence in the laneway;
• Fitkin’s disregard of the fact that Mack and the flyers corroborated McKay’s explanation and his interpretation of flyer delivery as a good cover story;
• Despite CPIC clearance, Fitkin’s further investigation of McKay on what was effectively a hunch;
• Fitkin’s investigation was imbued with unfounded and heightened suspicions;
• Fitkin’s discounting of McKay’s assertion of ownership and details of the bike store demonstrated a closed mind;
• Fitkin disregard of the bike’s actual blue colour and rationalization of the colour discrepancy to support his
suspicions disconfirming McKay’s ownership of the bike;
• Fitkin’s acceptance of one out of two possible number matches as a sufficient basis to arrest McKay;
• Fitkin’s indifference of, and failure to, verify the bike’s speed;
• Fitkin’s hasty arrest of McKay;
• Fitkin’s requirement that McKay provide proof of the receipt after the release; and
• The multiple criminal records searches of McKay after release.

[202] In conclusion, I find that the complainant’s race was a factor in his arrest, and that the personal respondent’s treatment of him was influence by an underlying racial bias, which shifted the encounter from a routine patrol stop to an incident of racial discrimination.

[203] The hearing was bifurcated and, as such, the issue of Board liability and remedies remain outstanding.

Penning an injustice for those who seek to hold police accountable

2011-03-16T20:16:00.000-04:00

On September 27, 2010, the Ontario Court of Appeal ruled in Penner v. Niagara (Police Services Board) that Wayne Penner’s civil claim for damages against two police officers was barred by the application of the issue estoppel branch of the res judicata doctrine as the issue had already been litigated in the context of a police disciplinary hearing. This 2010 decision from the Court of Appeal seemingly brought an end to Wayne Penner’s attempt to hold two police officers accountable for their alleged misconduct that occurred in 2003 at the Ontario Court of Justice in St. Catherines.

The Facts

On January 28, 2003, Wayne Penner was sitting in the body of the courtroom where his wife was defending herself against a traffic charge that she faced pursuant to the Highway Traffic Act. Officer Parker was on the stand being cross-examined by Mr. Penner’s wife. During the course of the cross-examination, Mr. Penner was alleged to be making ‘chirping’ noises which weren’t loud enough to be caught on the court recording devices, but were nonetheless disturbing to the Prosecutor and Court Officer. Upon the completion of his evidence, Officer Parker sat in the vicinity of Wayne and Officer Koscinski, who was in Court on an unrelated matter. At that point, Officer Parker turned to Wayne and told him that he could or would be arrested. Mr. Penner became upset and began complaining loudly that Officer Parker had threatened to arrest him (and this was caught on the court recording device). The Prosecutor asked the presiding Justice of the Peace to consider removing Mr. Penner from the courtroom. The Justice of the Peace never made this order.

Shortly thereafter, while Mr. Penner’s wife was being sworn in, the Court Officer ordered Mr. Penner out of the courtroom. Officer Parker immediately rose and put his hands on Mr. Penner, directing him to get out. Mr. Penner pulled away. At this point Officer Parker, with the aid of Officer Koscinski, placed Mr. Penner under arrest. They dragged Mr. Penner out of the courtroom and delivered empty hand and knee strikes to subdue him. Of note is that the presiding Justice of the Peace fled the Courtroom and asked the clerk of the court to call 9-1-1.

Mr. Penner was taken to the station where he was booked, strip-searched and charged with causing a disturbance, breach of probation, and resisting arrest. Upon being taken to the hospital, Mr. Penner was observed to be unsteady on his feet. He had a black eye, scrapes, sore ribs, a sore elbow, a bruised knee, and a sore wrist. Mr. Penner’s wife took photographs of the injuries. All charges against Mr. Penner were subsequently withdrawn by the Crown and Mr. Penner pursued a public complaint against the two officers pursuant to the former Part V of the Police Services Act.

The Disciplinary Proceedings

Under the former Part V procedures which have since been altered by the establishment of the Office of the Independent Police Review Director (“OIPRD”), the Chief of Police screened the complaint and determined that the matter warranted proceeding to a disciplinary hearing. The hearing was presided over by a Hearing Officer who is appointed by the Chief and who in this case, as in most cases, was a retired Police Superintendant. The police prosecutor appointed by the Chief in this case, as in most cases, was a senior officer from the same police force of equal or higher rank than the officers charged. Officers Parker and Koscinski were charged with two offences pursuant to the Police Services Act: 1) without good and sufficient reason making an unlawful or unnecessary arrest, and 2) using unnecessary force against a prisoner.

The disciplinary hearing took place over several days during which time 13 witnesses were called and 32 exhibits were filed. The key issue that the Hearing Officer needed to decide was whether the courtroom was a ‘public place’ such that officers had authority to arrest a citizen for causing a public disturbance in a courtroom that was being presided over by a Justice of the Peace. A legal opinion was sought by the Hearing Officer on the issue. On the basis of this opinion, the Hearing Officer concluded that the courtroom was a public place and that the officers had the right to arrest a citizen for causing a public disturbance. Since they had lawful authority for the arrest and Mr. Penner was actively resisting, and since the officers used appropriate use of force techniques, the officers were cleared of any wrongdoing.

The Disciplinary Appeal

Unsatisfied with the result, Mr. Penner appealed, as of right, to the Ontario Civilian Police Commission (“OCPC”). The Commission reversed the Hearing Officer’s decision and imposed discipline of four days lost pay for Officer Parker and two days lost pay for Officer Koscinski. The Commission did not find any authority under the Police Services Act to order the officers to make a public apology to Mr. Penner, as he had requested in his ‘submissions’ on the appropriate penalty.

In reaching this result, the Commission held that the Hearing Officer erred in failing to decide whether the powers of the Justice of the Peace in maintaining order within their courtroom trumped the powers of the police officers to affect an arrest for causing a public disturbance within the courtroom. After consulting the relevant authorities, the Commission concluded that the officers do have authority to arrest for causing a public disturbance in a courtroom but “absent either a clear and present threat or direction by the Court, we believe that such authority is superseded by the court’s power to deal with disruptive behaviour falling under the broad definition of contempt.” In reaching this conclusion, the Commission made reference to the fact that the police officers did not give Mr. Penner an opportunity to leave the courtroom voluntarily upon being instructed to do so by the Court Officer before they laid their hands on him. Accordingly, the Hearing Officer’s decision was reversed and the officers were found guilty of misconduct.

The Aftermath

It is at this point that things become troubling on many different levels. The officers applied for judicial review of the Commission’s decision. The Divisional Court held that the Commission erred by casting doubt on some of the findings of fact made by the Hearing Officer and by requiring the Hearing Officer to resolve the issue of the powers of the Justice of the Peace to control the proceedings. As a result, the court quashed the decision of the Commission and restored the decision of the Hearing Officer.

Mr. Penner was not represented at the disciplinary hearing, the OCPC appeal, or the judicial review application, nor did it appear that he made any meaningful submissions at any stage of the proceedings, and yet the Superior Court decided to order costs against him in the amount of $7,500. How can the court justify ordering costs against an unrepresented party for a decision reached by the OCPC on their own review of the record? As he was unable to hold the officers accountable through the police complaints process under the Police Services Act, Mr. Penner attempted to hold them accountable through a civil action for damages. This, as it turned out, was a costly decision.

The Civil Action

Mr. Penner filed a civil claim against the two officers as well as the Niagara Regional Police Services Board alleging unlawful arrest, unnecessary use of force during and after the arrest, false imprisonment, and malicious prosecution. All of his claims were struck on the basis of issue estoppel at the Divisional Court in an unreported judgment. The defendants were awarded costs in the amount of $10,353. Mr. Penner appealed this decision to the Court of Appeal where his appeal was dismissed.

In the course of dismissing his appeal, the Court of Appeal applied the three-prong test for issue estoppel. For the test to be met, the respondent police officers had to show that: 1. The same question was decided in the disciplinary proceedings; 2. The judicial decision said to create the estoppel is final (which Mr. Penner conceded); and, 3. The parties, or their privies, to the judicial decision are the same persons as the parties, or their privies, to the proceedings in which the estoppel is raised.

Even if all three prongs were met, the Court still had a residual discretion to not apply it if to do so would be unfair or work an injustice.

The Court of Appeal Decision

The first step of the test was met because the questions of lawfulness of the arrest and unnecessary use of force were already decided adversely to Mr. Penner at the disciplinary hearing. That decision was final as Mr. Penner did not appeal the judicial review decision by the Divisional Court (although he unsuccessfully sought leave to appeal the costs order). So the only real issue that the Court of Appeal had to decide was whether the parties were the same, and if they were, whether applying issue estoppel to bar the claim would be unfair or work an injustice. The Court concluded that the parties were the same and the bar would not work an injustice.

Leaving aside the application of the issue estoppel, there was an element of unfairness at play here. Mr. Penner won his appeal before the OCPC. The officers decided to judicially review this decision and were successful. At the end of that proceeding, Mr. Penner was stuck with a $7,500 bill. Undeterred by the financial burden in his quest for some form of police accountability and justice, Mr. Penner finally decided to hire counsel to represent him in a civil claim against the officers and NRPS. He lost again in the Court of Appeal and now has to pay the officers’ legal fees of $17, 855 for not being successful on the motion or at the Court of Appeal.

While the Court’s analysis of the ‘same parties’ branch of the test is troubling, it is nonetheless an accurate analysis of the statutory context as applied to the facts of the case. Mr. Penner had party status at the disciplinary hearing by operation of (then) s.69(3) of the Police Services Act, and he took advantage of that status as he “testified, cross-examined witnesses and made submissions on the legal issues”. How effective he was at any of these things would involve speculation as the record of the disciplinary hearing is not publicly available. What’s troubling is that the Court says that while he could have retained counsel, he chose not to. This ignores the economic realities of retaining counsel, especially in matters where your liberty is not at stake and where you have no prospects of financial gain.

Having established that all of the branches of issue estoppel have been met, the Court then turned to considering whether they should exercise their residual discretion to not apply the doctrine if it would cause an unfairness or injustice. The court outlined two factors which favoured Mr. Penner, and four factors which favoured not exercising this discretion. The court acknowledged that it’s not a simple mathematical calculation at this stage, but a qualitative assessment of the relevant considerations. One of the relevant considerations that the court identified – the different purposes of the two proceedings - ought to have been determinative.

The court accepted that the disciplinary hearing bears resemblance to an employer/employee grievance. This is an apt observation, especially in light of the fact that the Chief of Police is the one who brings the matter forward and assigns a Hearing Officer and a prosecutor for the proceeding. Furthermore, the remedial options available in the event of a misconduct finding are limited to affecting the officers’ employment with the police service. Had the Professional Standards branch of the police force discovered the alleged misconduct through their own investigation instead of being alerted to the issue by a complainant, the officers would have faced the exact same procedures and Mr. Penner would not have had party status at the hearing.

In the civil action, Mr. Penner sought financial compensation for the officers’ alleged misconduct. The Court accepted that the legislature didn’t intend to foreclose the civil action simply because a complaint was filed under the Police Services Act, and yet this is exactly the result that this decision achieved. The different purposes behind the disciplinary hearing and the civil action ought to have been determinative at this stage. Mr. Penner did not stand to benefit financially from any finding of misconduct at the disciplinary hearing even though the Court alludes to issue estoppel being a double-edged sword where a finding adverse to the officers would have considerably aided Mr. Penner in his civil claim.

But that begs the question. Why would a complainant turn to the public complaint process under the Police Services Act and have the issue prosecuted by a police officer from the same force and adjudicated by a police superintendant appointed by the Chief when he can have the matter adjudicated by a judge? From a complainant’s perspective, the Court of Appeal seems to have turned the issue into a zero-sum game: either you seek financial compensation for officers’ misconduct by way of a civil action or you seek to have them disciplined pursuant to the procedures outlined in the Police Services Act. These two remedies should not be mutually exclusive and yet with the limitation period for public complaints under the Police Services Act being set at six months, it seems that the practical reality is that they are mutually exclusive. This injustice/unfairness should have been sufficient to enable the Court to exercise their discretion in not applying issue estoppel.

Questions to Ponder

Mr. Penner has sought leave to appeal to the Supreme Court of Canada. If the Supreme Court decides that the Ontario Court of Appeal was right or denies leave to appeal, what can be done about the implications of that decision? It’s important to keep in mind that the Police Services Act has been amended when the OIPRD was established in the fall of 2008. While this represents significant reform in terms of oversight of the public complaints process, it arguably does not affect the impact of this decision as the complainant still has party status at the disciplinary proceeding, the OIPRD does not act as agent or counsel for the complainant, and the complainant needs consent from the OIPRD to withdraw a complaint. This is assuming that the complaint makes it to the hearing stage by passing the ‘frivolous, vexatious, bad faith’ stage as well as the ‘unsubstantiated’ option available to the Chief after conducting an investigation.

The impact of the Court of Appeal decision is that a civilian who seeks monetary damages due to a police officer’s misconduct which does not rise to the level of falling within the Special Investigations Unit’s mandate of resulting in ‘serious bodily harm or death’ should NEVER consider filing a public complaint through the OIPRD. If they choose that route and a former Superintendant decides that the misconduct is not proven on ‘clear and convincing evidence’ by a police officer from the same division of equal or higher rank appointed by the Chief, then their civil claim will be barred by operation of issue estoppel. But Wayne Penner didn’t seek monetary damages. When he was wronged, he just sought a ‘public apology’ which wasn’t even one of the disciplinary measures available under the Police Services Act. Once he was deprived of any meaningful measure of accountability through the public complaints route, he chose to seek redress through the civil avenue. This avenue just turned out to be extremely frustrating and costly.

What do you think about the implications of the Court of Appeal decision? In light of Professor Futterman’s discussion at the LEAP Conference last week about the potential of law school clinics, do you think there is a role for law school clinics around the province in providing legal assistance to complainants in police disciplinary hearings? Since Legal Aid Ontario funding for a complainant in a disciplinary hearing is out of the question, do you think the Court of Appeal decision effectively precludes a complainant from taking advantage of their party status at the disciplinary hearing in any meaningful way if they cannot afford to hire a lawyer? Should the Police Services Act be amended to exclude the complainant as a party and reduce their role to a witness, similar to the role that complainants play in a criminal trial?

Posted by Vlatko Karadzic (Windsor Law III)

Ottawa Police Officer charged with sexual assault of Stacy Bonds

2011-03-15T20:18:00.001-04:00

Following a lengthy investigation, the SIU has decided to lay a charge of sexual assault against Sgt. Steve Desjourdy of the Ottawa Police Service for his conduct during a unconstitutional strip search of Stacy Bonds.

For a legal argument that the facts of the case meet the Supreme Court of Canada's legal test for the actus reus of sexual assault, see David M. Tanovich, "Bonds: Gendered and Racialized Violence, Strip Searches, Sexual Assault and Abuse of Prosecutorial Power" (2011), 79 Criminal Reports (6th) 132.

Recruiting Female Police Officers

2011-03-12T13:25:00.001-05:00

A BBC article published last week reported that the number of female police officers in Scotland is at a record high. This news comes as a surprise considering that in 2004, Scotland was behind the rest of Britain, with only two women in senior chief officer ranks, and with no women above chief inspector level. Fast forward eight years to 2011. Within the country’s eight police forces, women now account for more than one in four (26.8%) of the entire police workforce, and two of the police forces currently have women at the helm.

It seems that the police forces listened to the working groups such as the Women’s Development Forum in 2004, to find out how they could improve in terms of recruitment and retention. Female officers were demanding greater flexibility and a better work/life balance, and wanted their concerns about discrimination against part -time staff (mostly women) addressed.

In Canada, the number of police officers has increased from approximately 56,000 in 2005 to over 69,000 in 2010. The percentage of female officers has also increased by 5.5% since 2000, to 19.2% of the police force in 2010 (Stats Can, 2010). Quebec and British Columbia lead the way with the highest percentage of female officers amongst the provinces, at 23% and 21% respectively (Stat Can, 2010).

The percentage of women in senior ranks continued to increase in 2010, with females representing 8.7% of senior officers (up 3.2% since 2005) and 15.2% of non-commissioned officers (up 5.5% since 2005). The percentage of female constables has remained close to 21% since 2005 (Stat Can, 2010).

Commonly identified advantages to having more female officers have been used to ‘convince’ police forces to hire more female officers. Some of the benefits include: bringing a different style of policing that uses less physical force; possessing better communication skills; facilitating better cooperation and trust with civilians; helping to change the male-dominated atmosphere and climate in law enforcement agencies; and helping to change policies and procedures that benefit both male and female officers.

Similar to discussions about increasing the number of racialized and Aboriginal persons and persons with disabilities in the workplace, a balance must be struck between effective hiring and retention, and tokenization. Simply putting more (fill in the blank) into a workplace cannot fix the culture of the organization, or the public perception of that system or institution. There must be a concerted effort on behalf of the agency to put systems in place that will ensure retention and promotion is just as important as recruitment.

In law enforcement, programs, policies and procedures that create more flexible work hours, more mentoring opportunities, stricter internal policies against gender discrimination and sexual harassment, and clear accountability mechanisms, will help to retain more women in the workforce.

Ensuring that promotional opportunities are available just as readily to female constables as they are to male constables is also important. This allows female constables, and the public at large, to see that becoming a female in a higher rank within a law enforcement agency is possible and can be achieved.

Racialized women face additional difficulties based on the intersection of sexism and racism in law enforcement – this is true for other intersectional identities such as ability, sexual orientation/identification, religion, age, etc.

Perhaps resources spent on hiring should not be increased, but rather they should be strategically spent on ensuring the culture of law enforcement agencies is not just tolerant towards female officers, but welcoming and encouraging of a higher percentage of female officers. Employees need to believe that the agency completely ‘buys-in’ to the benefits of having more (fill in the blank) officers.

However, this all begs the question of why in a time of budget cuts – specifically to social assistance, social services, school programming, etc. – are we hiring more police officers in general? Has the increase of female officers had an effect on police accountability?

Posted by Nana Yanful (Windsor Law I)

CCLA Report on G-20 Public Hearings Released

2011-03-08T14:54:00.002-05:00

Last week, the Canadian Civil Liberties Association (CCLA) and the National Union of Public and General Employees (NUPGE) released a joint report regarding police action during the 2010 G-20 Summit held in Toronto. The report was a result of public hearings that the CCLA and NUPGE held in Toronto and Montreal in November 2010, at which over 60 people recounted police misconduct they witnessed or experienced.

The report focuses on several aspects of the G-20 policing, including Regulation 233/10 passed under the Public Works Protection Act (PWPA) on June 2^nd, 2010. The regulation, which designated the streets and sidewalks inside the security perimeter a “public work” between June 21st and June 28^th, was passed behind closed doors and without input from any stakeholders, except the Toronto Police Service (TPS). The report criticizes the Ontario government for withholding notification of the regulation until after it had been passed and calls for the amendment or repeal of the PWPA.

The report also condemns the excessive use of arbitrary stops and searches of members of the public. Independent legal observers also recalled witnessing police searching people who clearly stated they did not consent to being searched.

Related to the numerous stops and searches, the report is particularly critical of the widespread arrests that occurred, especially those resulting from the raid on University of Toronto Graduate Student's Union building and the cornering of protestors and pedestrians at Queen and Spadina on June 27^th. The G-20 Summit resulted in over 1100 arrests, the largest mass arrest in Canadian history. The report calls the majority of the arrests excessive and unwarranted, serious violations of Charter protections. Public hearing participants also described the ridiculous nature of many arrests, including one woman being charged with burglary-related offences for carrying a piece of bamboo. Unsurprisingly, most of the arrested were not charged or had their charges dismissed.

Perhaps the most disturbing parts of the report relate to use of force and incivility towards the public. Observers reported seeing police officers charging into the crowd, grabbing, and dragging away peaceful protestors in an attempt to clear out Queens Park, the designated protest zone. In another incident, police officers arriving in unmarked vans dashed into the group of peaceful protestors gathered across the street from the Eastern Avenue Detention Centre, throwing several into the vans and speeding away. The protestors were then ordered to leave and fired upon by smoke-emitting projectiles. Personal accounts of excessive force include the experience of a man whose prosthetic leg was ripped off by police and was forcibly dragged away after explaining he couldn’t walk without it. The report also found the conditions and treatment of detainees at the detention centre to be deplorable, with overcrowded cells, lack of toilet facilities, and impaired access to legal counsel. Public hearing participants recounted particular incidents of misconduct, including the denial of insulin to a diabetic man until he collapsed and the strip searching of a minor. Particularly distressing, though not surprising, hearing participants recounted hearing racist, sexist, homophobic, and anti-Francophone comments made by police to demonstrators on the streets and in the Eastern Avenue detention centre, including a threat of rape at the detention centre.

At the core of the report is the recommendation that a joint federal-provincial public inquiry be convened to investigate the conduct of police and breaches of fundamental rights that were allowed to happen. Interestingly, the report also calls for an investigation into undercover police informants and limitations on what such persons can do. This raises the question of agents provacateurs and to what extent they contributed to the unruly behavior of some protestors. It is well known that infiltrators often provoke violent behaviour during otherwise peaceful protests, allowing for law enforcement to subsequently crack down, as seen during the August 2007 Security and Prosperity Partnership meeting in Montebello, Quebec. The report also recommends that a legislative framework be developed to deal with future public order policing of this nature. Even with the input of the public into such a framework, it seems unlikely that it would prevent similar misconduct in the future. Such misconduct is not exceptional but occurs daily, just on a smaller scale, and won’t end until the systematic nature of such misconduct is acknowledged and police officers are held accountable under the rule of law for violating “protected” rights rather than being shielded.

Do you think the federal and provincial governments will ever agree to a public inquiry?

Is a public inquiry needed when other inquiries have taken/are taking place, such as the Independent Civilian Review by the Toronto Police Services Board, the Systemic Review by Ontario’s Office of the Independent Police Review Director, and the review of the Public Works Protection Act by Ontario’s Ombudsman?

Given that public inquiries do not have the power to force government action but can only make findings and recommendations, do you think an inquiry would result in greater accountability?

Aminah Hanif (Law I)

What role does dehumanization play in explaining police treatment of Aboriginals?

2011-03-06T11:36:00.017-05:00

This blog entry is inspired by the third panel of LEAP's Accessing Justice and Accountability in Policing Conference (March 11 at Windsor Law).

It has been argued that the dehumanization of Aboriginals in Canada is an institutionalized behaviour, resulting from colonialism. Agents of the state were taking Aboriginal peoples, en masse, far from home and putting them at risk for a very long time. It is difficult to overstate the legacy of dehumanization. But it is even more difficult to call it a legacy because doing so implies past tense.

Modern Canadian examples of dehumanization in policing are ‘the Starlight Tours' phenomenon and the failure of the police to properly investigate the hundreds of missing Aboriginal women, collectively know as ‘Stolen Sisters’.

Starlight Tours refers to the practice of police officers driving Aboriginals to the outkirsts of city limits, in the middle of the night, and abandoning them, often in the freezing cold and with very little clothing. While the focus of the practice has been on Saskatchewan with the Neil Stonechild Inquiry and the conviction of two police officers for dumping Darryl Night outside of Saskatoon, a recent study reveals that the practice is systemic in Manitoba as well.

With respect to ‘Stolen Sisters,’ Amnesty International, amongst others, allege that Aboriginal victims of crime, women in particular, receive less attention from the police, resulting in many unsolved cases. In their report “Stolen Sisters” Amnesty International points out that:

Long-standing patterns of marginalization, impoverishment and discrimination are critical factors putting Indigenous women in Canada at risk of violence and exploitation. These same factors have also denied many Indigenous women full protection of the police and justice system.

Following the announcement of the Manitoba Integrated Task Force for Missing and Murdered Women in 2009, RCMP Assistant Commissioner Bill Robinson told the CBC: “I think it's become certainly clear to us that every homicide, every murder and involving any woman, we recognize that there's a lot of sadness and anxiety and fear out in the communities.”

Several provincial governments have commissioned task forces with the daunting job of figuring out and trying to solve the problem of stolen sisters. Acknowledging a problem is only the first step.

Hopefully, the task forces will recognize the critical role policing plays the tragedy of Stolen Sisters. It is important that police respect the integrity of all members of the community and deliver their best service to all. Time will have to pass for confidence to build, and it will always remain fragile.

In a 2008 interview, with Ladies Home Journal, Barack Obama shared a lesson he learned from his mother:

The best judge of whether or not a country is going to develop is how it treats its women. If it's educating its girls, if women have equal rights, that country is going to move forward. But if women are oppressed and abused and illiterate, then they're going to fall behind.

If Canada is to be judged on its treatment of our Aboriginal peoples, maybe we are not as advanced as we may like to believe.

I look forward to seeing the panel at 11:45AM on March 11.

Gavin Wolch (Windsor Law II)

Ottawa Police Service Launches Another Probe into Possible Excessive Use of Force

2011-03-06T10:37:00.001-05:00

Amid details that use-of-force applications by the Ottawa Police went up 55 percent in in 2010 and as the Ottawa Police Service is still wading through the aftermath of the mistreatment of Stacy Bonds, another probe into the actions of Ottawa police officers is under way.

An internal probe has been launched into an incident that culminated in a police officer punching an Ottawa man several times while he lay on the ground during the early hours of the morning on January 29,2011 in the ByWard Market area of Ottawa.

While accounts differ about details leading up to the police take down and why the man was subdued, those interviewed seem to agree that the police appeared to use much more force than was necessary in the circumstances, particularly one officer’s decision to restrain the main by punching the man’s face and head. This has caught the attention of Police Chief Vern White.

Though no public complaint has been filed, Chief White has launched an internal probe, or a “chief’s complaint” to the professional standards section of the Ottawa Police Service, to identify the officers involved and more fully investigate the circumstances for the arrests.

The video has emerged as the Ottawa Police Service recently tabled a report to the Police Services Board on the use of force by officers, which indicates that the use of physical force has tripled between 2009 and 2010. While the report suggests that increased training on transition between force and other options has contributed to a greater willingness to use alternative responses, the recent series of high profile incidents of violence have done little to reinforce the public’s confidence in their police force.

Chief White has vowed that a full investigation will be done into the matter, and that “in cases where an officer is found to be in violation of [their oath of office], discipline will be sought”. It remains to be seen how this will impact community relations with the Ottawa Police Service and the use of force as the number of incidents continue to rise.

How do you think the Ottawa Police Service can regain public confidence? How does this intersect with police accountability and/or training?

Posted by Jeremy Tatum (Windsor Law II)

LEAP Conference (March 11) - Accessing Justice and Accountability in Policing

2011-02-20T15:49:00.001-05:00

On March 11, 2011, Windsor Law School will be hosting LEAP's first conference -- Accessing Justice and Accountability in Policing. The conference is designed to explore and assess the various mechanisms to enhance access to justice in policing. These mechanisms include data collection, Charter and civil litigation, human rights collaborations, listening to voices at the margins and law school clinics.

The conference is free to attend and open to everyone. If you would like to attend, please register here.

A podcast of the conference will be available on the LEAP website for those who cannot attend.

There is an essay contest open to all law students in Canada. There is a $1,000 prize and possible publication in the conference book. For more information, click here.

In preparation for the conference, LEAP students have prepared a bibliography of academic articles related to the topics of the conference. To access the bibliography, click here.

Over the next few weeks, LEAP students will be posting pieces on the LEAP Blog relevant to the conference.

Is it a Training Issue? The Police and the Prevalence of Rape Myths

2011-02-18T10:12:00.001-05:00

In general, how do police officers view the victims of sexual assault? Are their attitudes towards gender roles and rape related to each other? Do these attitudes influence the investigation process? A safety information session at York University would force these questions back into the public discourse.

Since 2006, sexual violence on York University campus has been increasing at alarming rates. Most recently, in April 2010, a York University graduate student was sentenced to eight years in prison for sexual assault and sexual assault causing bodily harm stemming from attacks on two first year students in their campus dormitory during frosh week in 2007. A month later, a 20-year-old student was sexual assaulted by three strangers as she walked to her apartment just south of the campus where many students reside.

In the wake of this it is no surprise that the University’s students unions have been calling for improved campus safety. Readdressing these concerns for the safety of students, on January 24, 2011 Osgoode Hall Law School in conjunction with the Toronto Police Services (TPS) and York Security Services held an information session on safety for the students. Since then, York students and staff have been demanding a written apology and an explanation from the Toronto Police Service after one of the uniformed officers allegedly told the audience that one of safety tips he could offer was that women can avoid sexual assault by not dressing like sluts.

Ronda Bessener, Assistant Dean at Osgoode who attended the session, told the Excalibur student newspaper “he said something like, I’ve been told I shouldn’t say this, and then he uttered the words.”

The Toronto Star is reporting that the police officer from the 31 Division has apologized, saying “he is embarrassed by the remarks and that assaulted women are not victims by choice.” Constable Michael Sanguinetti wrote on February 17to Osgoode Hall Law School, “I made a comment which was poorly thought out and did not reflect the commitment of the Toronto Police Service to victims of sexual assault.” According to the Toronto Star, although unclear as to the extent, the officer has been “disciplined” by the professional standards unit of the TPS.

The Vice-President of the York Federation of Students noted that “linking provocative clothing to sexual assault is a huge myth and all it does is blame the survivor of a sexual assault while taking the onus away from the perpetrator”.

In light of rape law reforms, the TPS officer’s comments illustrate that, culturally, police officers have not completely adapted to these changes. The officer’s ‘safety tip’ and language used points to the pervasiveness of rape mythology and the deeper challenges to the sexist stereotypical reasoning of rape, and about women, and about who are raped. The existence of rape myths is not a new phenomenon and has even been judicially recognized in cases such as R. v. Ewanchuk. In her concurring opinion, Justice L’Heureux-Dube quoted from D. Archard, Sexual Consent (Colorado: Westview Press, 1998), at 131:

"Myths of rape include the view that women [fantasize] about being rape victims; that women mean 'yes' even when they say 'no'; that any woman could successfully resist a rapist if she really wished to; that the sexually experienced do not suffer harms when raped (or at least suffer lesser harms than the sexually 'innocent'); that women often deserve to be raped on account of their conduct, dress, and demeanour; that rape by a stranger is worse than one by an acquaintance. Stereotypes of sexuality include the view of women as passive, disposed submissively to surrender to the sexual advances of active men, the view that sexual love consists in the 'possession' by a man of a woman, and that heterosexual sexual activity is paradigmatically penetrative coitus."

Research in this area has also shown that the dominance of rape myths, include the view that the victim is lying, deserved the sexual assault, or asked for it because of how she was acting or what she was wearing, thereby downplaying the seriousness of the sexual assault that occurred by suggesting it was a trivial or even a natural event. Consequently, victims of sexual assault are more likely to think that the police will not believe their charge.

Other evidence suggests that sexual assault victims are more likely to complain that the police were too lenient or that they did not conduct enough of an investigation into their complaint. In general, fear of reprisals and feelings of intimidation are significant issues for victims of sexual assault when coming into contact with the police and, in turn, influences whether they file a police complaint concerning their case. The systemic problems in police investigation of sexual assault were brought to mainstream consciousness in 1998 with the landmark judgment of the Ontario Court in the Jane Doe case.

With sexual violence being a common occurrence on the University’s campus, Assistant Dean Bessner, underscores the on-going implications of the officer’s remarks, “such comments make it difficult for victims dealing with sexual assault because they make them feel uncomfortable going to the police for help. I think it’s really important that the police […] receive appropriate training on sexual assault, so that statements like this are never made and that they understand the dynamics of sexual assault. ”

Posted by Andrea Anderson (Windsor Law, 2009)

Caught Between a Tort and a Hard Place - A Comment on Wellington v. Ontario

2011-02-17T17:02:00.003-05:00

The Tort Action and the Law

In Wellington v. Ontario (2010), the Ontario Divisional Court had the occasion to consider whether the family of a person killed by police could sue the Special Investigations Unit (SIU) for damages for alleged negligence in investigating the officers involved in the killing.

Duane Christian, a 15 year old black Toronto youth, was fatally shot by a police officer in the early morning hours of June 20^th, 2006. The SIU investigated the circumstances surrounding Duane’s death and concluded that the officers acted lawfully. Duane’s estate, his mother and his sister launched a civil suit against the SIU and then Deputy Director James Ramsey alleging negligent investigation of the circumstances surrounding Duane’s death. They argued that this deprived them of the opportunity for a trier of fact to assess criminal liability, lessened their chances of recovering civil damages, and has caused them added mental and emotional distress.

The defendants’ brought a motion pursuant to Rule 21 of the Rules of Civil Procedure to strike out the statement of claim on the ground that the pleadings do not disclose a cause of action. The motion’s judge dismissed this motion on the grounds that it was not ‘plain and obvious’ (the test for striking out a pleading pursuant to Rule 21) that the plaintiffs’ claims could not succeed which meant that the parties would have to argue the matter on the basis of a full record. This ruling was then appealed to the Divisional Court which upheld the ruling in a 2-1 decision.

The first step in proving negligence is for the plaintiffs to establish that the defendants owed them a duty of care. The defendants attempted to strike out this claim because the existing jurisprudence has established that police officers do not owe a duty of care to victims or their families, or in the alternative, that the application of the Anns test (Anns v. Merton London Borough Council [1978] A.C. 728 (H.L.), affirmed in Cooper v. Hobart, [2001] 3 S.C.R. 537) would inevitably lead to the conclusion that the SIU does not owe a duty of care to victims of police brutality or their families. The majority and the dissent were in agreement that the existing jurisprudence does not preclude the existence of such a duty of care, but they parted ways on the issue of whether it was appropriate to conduct an Anns analysis in the context of a Rule 21 motion. The majority was in agreement with the motions judge that the Anns test should only be applied in the context of a full record where the Court could benefit from the submissions of the parties. The dissenting judge felt that it was entirely appropriate to apply the Anns test in the context of a Rule 21 motion and, after doing so, concluded that neither the province nor the Deputy Director owe a duty of care to victims of police brutality or their families.

If it is determined at trial the SIU owes the victims and their families a duty of care, the precise content and scope of that duty is unclear. Since it has already been established that police officers owe suspects a duty of care (Hill v. Hamilton-Wentworth Regional Police Services (2007 SCC 41)), by analogy SIU investigators owe suspect officers a duty of care. Any new duty being recognized as being owed to victims and their families could not be in conflict with the duty owed to the suspect officer. How can this balance be struck? At which point does the duty of care owed to the victims and their families result in an SIU investigation that may breach the duty of care owed to suspect officers?

Similarly, if a duty of care is created, how will the standard of care be ascertained? Is a mere omission to ask a relevant question truly negligent? What about the complete failure to interview witnesses? Where will the line be drawn and how will it impact routine police investigations of civilians suspected of committing criminal offences? After all, not every investigation leads to charges being laid, and not every charge results in a conviction. At which point is a victim of crime able to come to court and allege that an officer was negligent in their investigation of the alleged crime?

I have avoided discussing the factual underpinnings of the civil claim as the law of negligence is meant to develop incrementally, recognizing novel duties of care only by analogy or from first principles (Anns). Once a duty of care is recognized by the Courts, the consequences of that recognition have repercussions beyond the parties to the action. In this case, one of the potential consequences would be that all police agencies owe all victims of crime a duty of care in the manner they carry out their criminal investigations.

While the majority judgment may seem like a victory for Duane’s family, the dissenting judgment may be foreshadowing the eventual outcome once the issues are considered in the context of a full record. The topic of whether a prima facie duty of care between the SIU and victims of police brutality and their families should be recognized certainly makes for interesting academic debate and would be a ripe topic for a law school torts moot which could highlight competing arguments that can be advanced in the application of the Anns test. However, as interesting as this legal debate would be, it would overshadow the tragic factual underpinnings of the case which highlight some of the obstacles to thorough, competent, and reliable SIU investigations. The factual underpinnings of the case also help us understand why Duane Christian’s family is so upset about the outcome of the SIU investigation.

The Facts

As future lawyers, we are taught to be sensitive to the competing narratives at play in any given case. The Wellington decision was working off a general narrative that police officers had stopped the vehicle that Duane was driving and while both officers were outside of their vehicle with their guns drawn, Duane attempted to drive away. One of the officers was directly in front of the van that Duane was driving, and the other officer fired six shots inside the van which resulted in Duane’s death.

A closer scrutiny of the motion judge’s decision in the Wellington case reveals the narrative advanced by Duane’s family. They alleged that the negligent conduct on behalf of SIU investigators involved the following:

· the SIU did not interview PC Darnley (the officer who fired the lethal shots);

· the SIU failed to ask PC Edey (the officer who stood in front of the van as it attempted to drive off) certain important questions;

· the SIU’s language in handbills and press releases was intentionally prejudicial in favour of the officers;

· the SIU allowed the officers to keep their firearms until approximately seven hours after Duane was shot and failed to take measures to prevent the possibility that the weapon was tampered with;

· the SIU failed to thoroughly investigate the lawfulness of Duane’s detention;

· the SIU closed the investigation prior to receiving the pathologist’s report;

· the SIU failed to take into account that PC Edey’s evidence was contrary to the forensic evidence;

· the investigation was hasty and superficial; and,

· the SIU departed from standard investigative procedures.

The Toronto Observer’s view of the facts provides yet another lens through which to view the events, one that prefers to blame the victim and victimize the perpetrator. In fairness to the newspaper, the article is filed under ‘opinion’, and the newspaper is produced and edited by Centennial College journalism students. I’m inclined to think that this particular ‘opinion’ comes from someone who may have a vested interesting in advancing this particular narrative. I feel like any paraphrasing of this position would do it injustice, so some direct quotes are in order:

It is possible in the wave of outrage that seems unavoidably linked to a boy being killed by police we have missed the most important issue at hand here. Why was Duane Christian out in a stolen van at 5 a.m. on a Sunday morning with a stash of cocaine and marijuana in the seat next to him?

I could not ascertain where the information about the drugs came from. It may be a product of self-serving police leaks to the media. Regardless, Duane was never charged with any offences (because he’s dead). The kind words from the Observer don’t end there:

But the young man’s family are not the only living victims of Christian’s death. Const. Darnley and his family would have never heard the word “killer” attached to his name. We must look beyond the badge to see the human being — he is a victim in this too. He has to move on knowing that Christian’s actions forced him to end the boy’s life. It is unfortunate that Christian was not mature enough to realize the impact of his actions, but he could have been taught. He could have been steered by his family and community away from crime, and away from what ultimately cost him his life.

The Toronto Police Service owes the Toronto Observer a thank you letter for their summary of the events. But this type of blame-the-victim approach is not confined to student editors of the Toronto Observer. It is a view shared by many segments of society and may help explain why convicting a police officer in a jury trial is next to impossible.

Ontario Ombudsman Andre Marin’s 2008 report on the SIU entitled “Oversight Unseen” adds additional background factors regarding the investigation of Duane’s death which are not disclosed in the Divisional Court’s judgment, the plaintiff’s pleadings, or the Toronto Observer’s ‘opinion’. It is in the context of these facts that the alleged failures of the SIU investigation should be analyzed. These additional facts reveal the following:

Even though the incident occurred at 4:55am, the SIU wasn’t notified until 6:10am, even though there should have been absolutely no question about their mandate being invoked in this type of case;

Shortly after, seven TPS officers attended the scene and 14 other officers canvassed the area for potential witnesses;

The lead SIU investigator didn’t arrive on the scene until 3 hours after the incident due to the SIU policy of how a team is assembled which involves investigators driving in from great distances;

The canvass of nearby apartment buildings for potential witnesses didn’t start until 5 hours after the events, and continued for days;

During this whole time, and in fact not until sometime later was Duane’s mother notified of Duane’s death. She was one of the potential witnesses located by TPS during their initial response to the scene and was taken to the police station as a ‘potential witness’ even though she expressed fears it was her son who was lying dead on the pavement;

The key witness officer wasn’t interviewed until six days after the events, and the other six witness officers who were first to arrive on the scene weren’t interviewed for 17-24 days; and,

The suspect officer was never interviewed before the SIU concluded its investigation.

Questions to Ponder

Given this factual matrix, what do you think about the conduct of the SIU? Do you think recognizing this new duty of care would cause more problems than it would solve given that less than 3 percent of SIU investigations result in officers being charged with criminal offences? In conducting their investigation, do you think the SIU should have a responsibility to consider any potential civil claim by the victim’s family against the officers involved?

What do you think about the obstacles that stand in the way of timely and thorough SIU investigations? Do you agree with the Ombudsman’s position that the SIU should become more aggressive and use the statutory powers available to them? Given the statistics outlined on the SIU website about the size of their staff and their budget, do you think it’s feasible to have them conduct interviews with witness officers within 24 hours? While not cooperating with an SIU investigation is a disciplinary offence, the SIU does not have the power to lay that disciplinary charge. Do you think they should be given that power and would that encourage more timely cooperation with SIU investigations by witness officers? Was the conduct of the SIU in Duane Christian’s case negligent?

Posted by Vlatko Karadzic (Windsor Law III)

Can police officers retire to avoid investigation by the SIU?

2011-01-18T13:38:00.001-05:00

Metcalf v Scott, an injunction filed by Peel Regional Police against the Special Investigations Unit, raises two important issues surrounding police accountability.

First, does the SIU have jurisdiction to investigate alleged incidents that took place before August of 1990 when it was created? As there is no statute of limitations on criminal offences, it is difficult to understand the basis of this argument. Indeed, according to Ian Scott, the SIU Director, it has investigated pre-1990 cases.

Second, does it have jurisdiction to conduct an investigation in cases involving retired officers? Does this mean that officers involved in a serious incident could resign or retire to avoid an independent investigation by an agency like the SIU?

The case involves sexual assault allegations. The complainant alleges that she was sexually assaulted by a Peel police officer on more than one occasion in the early 1980s when she was 15 years old and facing charges of theft and fraud. The officer in question retired in 2009. According to the news report, Peel Police originally cooperated when the complaint was filed in June but in late July, they sent a letter to SIU Director Ian Scott indicating that their own Professional Standards Bureau, or an outside police service, would be taking over the case since, in their view, the SIU had no jurisdiction.

The SIU was created to increase confidence in the police and ensure accountability when officers are alleged to have committed sexual assault or other criminal offences involving serious bodily harm or death. The seriousness of the allegation demands an independent eye to ensure no apprehension of bias. On a more human level, we as a society ask an independent body to look into whether or not there should be charges laid in such cases so that no one officer has to make that call, or face the potential stigma associated with charging one of their own with sexual assault, manslaughter or murder. The severity of these cases necessitates an independent body to ensure confidence in the police and the administration of justice. In a perfect world the SIU should be involved in all cases of alleged criminal conduct, but practical and budgetary constraints make this very unlikely.

Is an SIU investigation required when the allegation involves a former officer? Should it matter if the officer has been retired for 1, 5 or 10 years? Is there a point when concerns about bias subside? Or is it the fact that the police perceive it to be a police officer as opposed to a named person that is being investigated that requires independence in the investigation? Will exempting the SIU from these cases encourage officers to resign? What are the public policy implications?

Posted by Pamela Santora (Windsor Law I)

Windsor Police Service takes the lead on understanding and responding to homophobic violence

2011-01-14T09:57:00.002-05:00

Last summer, in two separate incidents, three gay men in Windsor were violently assaulted and subjected to homophobic slurs. Their cases are currently before the courts with one of the accused charged with public incitement of hatred, a crime that is rarely charged.

The Windsor Police Service has responded by implementing mandatory training on understanding and responding to homophobic violence. According to Helen Kennedy, executive director of EGALE, the WPS is the first police service in Canada to fully implement its training recommendations. The proposal has been welcomed by all members of the service including the Windsor Police Association.

The training comes at a fundamentally critical time as reported hate crimes against the LGBT community are on the increase and gay men, in particular, are at greater risk of being violently assaulted in a hate crime than members of religious minorities and racialized communities. See "Hate crimes against gays doubled in Canada". Moreover, LGBT hate crimes remain under-reported and under-classified.

Hopefully, similar training is occurring in other segments of the criminal justice system. For example, section 718.2(a)(i) of the Criminal Code permits judges to increase a sentence for a crime motivated by "bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor." Unfortunately, this section has been rarely used by Crown Attorneys or applied by trial judges. See, for example, the case of Aaron Webster who was brutally beaten in Stanley Park in British Columbia. On this front, things may be changing. In British Columbia, for example, a new Crown policy relating to section 718.2(a)(i) came into effect on October 12, 2010. It requires Crowns to lead any evidence that a crime was motivated by hate and make 718.2(a)(i) submissions in cases where "there is a reasonable likelihood that the court will make a determination on sentencing that an offence was motivated by bias, prejudice or hate ...." Of course, this still requires training to ensure that the cases are properly identified.

On March 11, 2010, LEAP is hosting a conference entitled Accessing Justice and Accountability in Policing. One of the issues that will be addressed is policing issues relating to the transgendered community. Constable Christine Schulz of the Ottawa Police Service and one of Canada's first transgendered police officers will be speaking.

Posted by Professor David M. Tanovich

Should police be given mandatory training to deal with mentally disordered individuals

2011-01-11T16:52:00.005-05:00

On August 13th 2007, Constable Lee Chipperfield, a member of the Vancouver police department, killed Paul Glenn Boyd, a 39-year old animator. The police were responding to a call regarding an assault in progress. Boyd had assaulted an officer with a bicycle chain and lock and despite warnings to drop his weapon and get on the ground, Boyd advanced toward the other officers including Chipperfield. Chipperfield open fired on Boyd, shooting him nine times, the final one being a fatal shot to the head. Two years after Boyd’s death, Chipperfield was cleared of any wrongdoing.

Boyd suffered from mental illness. Last month, experts at the coroner’s inquest into the shooting of Boyd suggested that it was possible he was psychotic. His psychiatrist, Dr. Margaret Duke, testified that she had seen him 4 days before his death and said he had been suffering from bi-polar disorder and post-manic depression. He was functioning, but not properly administering his medication and as a result was a concern to Duke.

The inquest into the shooting of Boyd made 9 recommendations aimed at ensuring this type of incident would not occur again. One recommendation centered on the types of weapons police use in such situations. The jury recommended that all police officers be equipped with non-lethal weapons such as beanbag guns, or tasers. This is salient given the fact that Chipperfield said he felt that Boyd was at risk to attack him or someone else and that the police had “run out of options”.

The major recommendation, which came from the inquest however, was that the police department should have additional mandatory training to learn how to deal with mentally disordered individuals. Such training could help some officers recognize symptoms of mental illness and become equipped with the necessary tools to deal with those situations – not simply resort to using their guns. The question then is – would this actually have an effect in cases like this one? Will an officer that chooses to shoot a man 9 times without attempting other measures actually pause to put their training into effect? It might be just as important to look at police culture, how officers are trained at a more basic level, and how their training might be used in the future to mitigate that initial instinct to reach for lethal weapons.

What do you think? Should resources be allocated to fund special training for police officers to learn how to deal with mentally disordered individuals? Will this start a ripple effect for other such groups who feel that police forces should have better capabilities in dealing with their issues?

Posted by Melissa Crowley (Windsor Law I)

Deputy Commissioner wants RCMP disclosure obligations relaxed

2011-01-07T19:11:00.011-05:00

According to newspaper reports, the RCMP is calling on the Harper government to relax the disclosure obligations of police officers in Canada. Senior Deputy Commissioner, Rod Knecht, intimates that the additional time police officers spend preparing disclosure comes at a cost to public safety. He would prefer that disclosure resources were instead spent on front-line policing.

This call for action is troubling. Several judicial inquiries have confirmed that non or insufficient disclosure of evidence contributed to wrongful convictions in Canada. In 2007, the Ontario Court of Appeal overturned the conviction of Steven Truscott. In 1959, Truscott was sentenced to death as a 14-year-old. He spent more than ten years in jail and lived his life stigmatized as the killer of Lynne Harper. The Ontario Court of Appeal found that a miscarriage of justice had occurred as a result of unreliable science, inadequate disclosure, faulty police investigating techniques and an unlikely theory of murder. Of note, a substantial amount of the fresh evidence heard at the Truscott appeal included information known to the Crown at the time of the original trial that was not disclosed to the defence. The Lamer Inquiry into the wrongful convictions of Ronald Dalton, Gregory Parsons and Randy Druken also chronicled flawed police investigations and disclosure.

While the volume of disclosure and the length of an average criminal trial has undoubtedly grown since the Supreme Court of Canada decision in R v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court has consistently held that persons charged with an offence have a constitutional right to disclosure of all information in the Crown’s possession or control, subject to proof from the Crown that the information is clearly irrelevant, privileged and in the public interest to withhold.

As Justice Sopinka, for the Court, recognized in Stinchcombe at 339-345, there will be cases where disclosure is more straightforward, as well as highly complex cases involving serious allegations and grave consequences to individual liberty that involve more lengthy and complex disclosure. The Court emphasized that the key to proper disclosure being made is whether an accused can make full answer and defence at trial. What exactly this means will vary to some extent from province to province and within a province by reason of local conditions, practices and the nature of the charge.

The need for accurate information and comprehensive disclosure has also been evidenced in matters of “national security”. Justice Dennis O’Connor’s Inquiry into the Actions of Canadian Officials in Relation to Mahrer Arar contains multiple references to the lack of transparency surrounding policing and national security activities. After finding that the RCMP passed inaccurate and unfair information to the United States that likely led to Maher Arar’s arrest and torture, Justice O’Connor included in his list of recommendations, amongst other things, that what is needed to ensure accountability of law enforcement is, subject to certain conditions, disclosure of information forming the basis of the charge, scrutiny by the courts and/or an independent review body. Bill C-38, which was created to alleviate some of the problems highlighted in the O’Connor Report and transparency in policing, has already drawn criticism about not going far enough to ensure access to information.

Consequently, if the police or CSIS are derelict in their responsibility to comprehensively record details of their investigation, there is the possibility that charges may be stayed under the Charter. There is also an increased likelihood of miscarriages of justice. Even if the non-disclosure does not rise to this level, it will likely lead to multiple adjournments to generate, for example, will say statements and other disclosure that was not prepared in the first instance. All of this comes at a cost to the taxpayer and even more the justice system.

It is for this reason that any non-disclosure legislation or practice grounded in administrative convenience would not survive a constitutional challenge where less restrictive alternatives are available and the right is a crucial component of a fair trial.

Whether the government ultimately chooses to “ease” disclosure obligations by hiring additional police officers in, for example, the isolated communities Knecht says are being “paralyzed” by disclosure obligations or improve the equipment and method available to officers in preparing records of their investigations are policy avenues that the government can consider. In the wake of recent debates and different community standards about the criminality of prostitution, use and possession of marijuana and other minor offences, it remains open to the government to consider whether to decriminalize or simply not enforce these acts as a more appropriate cost-cutting approach. What do you think?

Posted by Jeremy Tatum (Windsor Law II)

LEAP Blog wins 2010 Canadian Law Blog (CLawBies) Award

2011-01-04T14:38:00.008-05:00

This year, the Canadian Law Blog Awards (CLawBies) awarded the LEAP Blog with an award under the category of Non-Legal Audience. Here is how CLawBies.ca described the category:

4) Non-Legal Audience Award. In one sense, of course, most blogs are written for a non-legal audience, i.e., clients. But we mean this award for a blog that targets industries or communities outside the law that nevertheless are affected by the law. This year’s award goes to the Law Enforcement Accountability Project (LEAP) blog at the University of Windsor Faculty of Law. Students and professors focus their efforts on alleged police misconduct and racial profiling, and this year included content on the G20 Summit in Toronto and the police response thereto. Most law blogs are written by and for people who work in office buildings; LEAP’s audience is the people who march past those buildings, and it keeps them informed and engaged with developments in their world.

Runners-up: Connie Crosby, the Environmental Law Centre (Alberta) and the WCEL Environmental Law Alert.

Thanks to all of the students who write for the blog especially those in the LEAP Blog Working Group. Hopefully, 2011 will see greater participation and interest in the Blog as we strive for the ultimate CLawBies - The Fodden Award for Best Canadian Law Blog. Watch out Professor Geist!

CBC's The Current examines strip searches

2010-12-13T19:06:00.006-05:00

As noted on The Current's website:

PART TWO

Strip-Searches - Roberta Walker

It has been nine years since the Supreme Court of Canada prohibited strip-searches as a routine police practice. But just last month, the issue boiled over again, after a judge in Ottawa chastised local police for their un-provoked and violent strip-search of an innocent woman named Stacey Bonds. The Supreme Court handed down its ruling in December of 2001.

The case centered around Ian Golden, a black man who was strip-searched by Toronto police in a downtown restaurant. The Supreme Court ruled that strip-searches may only be done out of clear necessity with the permission of a supervisor and by members of the same sex.

But despite that ruling, strip-searches continue to be a common and controversial police practice. Freelance producer Roberta Walker has been looking into the issue. She was in Ottawa.

The Current interviewed Professor Tanovich who argued R. v. Golden in the Supreme Court of Canada.

The Crown should align with justice, not the police

2010-12-11T21:58:00.003-05:00

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.

© Copyright (c) The Ottawa Citizen

What were the prosecutors thinking?

2010-11-19T10:09:00.010-05:00

By David M. Tanovich, Ottawa Citizen Special November 19, 2010

By now most people are familiar with the horrific experience of Stacy Bonds, the young woman who was arrested for effectively asking why she had been stopped and questioned by the police and then assaulted, strip-searched and detained half-naked for over three hours in a police cell. Her charge of assaulting police was stayed by Justice Richard Lajoie who concluded that there was no lawful authority for any of the conduct of the police that night and that what had happened to Bonds was an "indignity towards a human being."

While the focus has quite properly been on the conduct of the police officers involved, less attention has been placed on the Attorney General, the Crown Attorney's Office and the prosecutor, all of whom it seems believed that prosecuting Bonds for a minor offence in these circumstances was in the public interest.

It bears repeating that the purpose of a prosecutor is not to secure a conviction but to serve as a minister of justice. To ensure that the administration of justice is not tainted by conduct that subverts the rule of law.

Well before the trial, the Crown had seen the videotape. What did it show him? In addition to having a hand shoved down Bonds' pants and twice violently kneed in the back, she was strip-searched in the presence, and with the assistance, of male officers, one of whom forcibly cut her shirt and bra off with a pair of scissors. She was then left half-naked in a cell for over three hours. When she was found, her pants were soiled.

In R.v. Golden, the leading constitutional case on strip-searches, the Supreme Court of Canada recognized that "[w]omen and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault." Indeed, as Bonds puts it, "I was mentally and verbally raped."

The trial judge concluded that the only reasonable explanation for the officers' conduct was "vengeance and malice." He didn't link it to any prior event but presumably it was for Bonds' questioning the authority of the police earlier on the street. As Bonds is a black woman, there is also the lurking question of whether race and/ or gender were a factor not only in their decision to stop her on the street, but also to subsequently humiliate her. Given what we know about racism in policing and given that one of the officers was earlier temporarily demoted for assaulting and repeatedly Tasering a young woman in a cell less than a week before this incident, this is a very real likelihood.

Any reasonable Crown viewing the videotape would have concluded that the only offence it revealed was the assault and sexual assault of Bonds by the officers. Any reasonable Crown would have realized that Golden prohibits strip-searches of women by male officers absent extraordinary circumstances, and that without lawful authority, the non-consensual touching of a female suspect that interferes with her sexual autonomy or dignity is a sexual assault. As the trial judge pointed out, there was no lawful authority for any of the officers' conduct in this case.

Had the Crown Attorney's office properly examined this case and identified it as a serious incident, the case would have come to the attention of the chief of police. It is hard to criticize Chief Vern White or his executive for inaction when not only was the matter not brought to their attention but an independent agency was prepared to prosecute and defend the officers' conduct. Even during the trial, the Crown prosecutor was given the opportunity to do the right thing and withdraw the charges but presumably after getting instructions from his superior, he persisted.

In staying the proceedings against Bonds, the trial judge held that to continue the prosecution would be a "travesty" and that "I certainly would not be a party to such an action." The question is why the prosecutor and his office permitted itself to be a party.

What remains to be seen is how our system responds. One officer has been banned from dealing with the public and an internal investigation has been launched. But will the province's Special Investigations Unit investigate the case as this conduct should be deemed to fall squarely within their mandate? Will these officers be charged with assault causing bodily harm and/or sexual assault? And finally, will the public find out why the Attorney General continued to prosecute Bonds in these circumstances and failed to denounce what happened to her?

David M. Tanovich is a professor of law at the University of Windsor and academic director of the Law Enforcement Accountability Project (LEAP).
© Copyright (c) The Ottawa Citizen

What is really the point of the SIU?

2010-11-15T22:28:00.003-05:00

The Toronto Star recently published an article entitled “Are these cops above the law?”

This article looked at the manner with which the Special Investigations Unit (SIU) has dealt with investigating and prosecuting police officers that have caused serious harm or death to members of the public. In one instance, a 59-year old intellectually challenged man holding a pocketknife was shot and killed by a fully armed police officer wearing a bulletproof vest. In another, two teenagers suffered extensive injuries after being run over by a police cruiser, while they were sitting in the grass talking. Finally, a grandmother, out for a morning stroll, was killed when a police officer made an illegal right turn and ran her down.

Officers are subject to the SIU, which is meant to carry out investigations of serious cases involving harm done by officers. In its 20 year existence, the SIU has undertaken more than 3,400 investigations on officers and of those investigations, only 95 have led to criminal charges. From these charges there have been 16 convictions, only 3 resulting in jail time. The purpose of the SIU, as stated on their website, is, “to maintain confidence in Ontario's police services by assuring the public that police actions resulting in serious injury or death are subjected to rigorous, independent investigations”.

This objective does not appear to be succeeding. For example, in the cases mentioned above - the intellectually challenged man that was killed, the teenagers that were run over, and the grandmother that was run down – the officers were completely cleared and received no criminal sanctions whatsoever. For the death of the grandmother specifically, the only sanction the officer did receive was the loss of one week’s worth of salary.

So why aren’t these officers being held accountable criminally for their crimes? The SIU is run primarily by fellow police officers. 47 of the 54 investigators on the SIU are former police officers. There is inherent bias and lack of transparency in the process, which sees police officers as responsible for holding other officers accountable. Furthermore, 7 million tax dollars each year are put into running the SIU. This means that in 20 years, a total of 140 million dollars has gotten us 16 convictions. The question then is, what is really the point of the SIU? Is it honestly trying to hold officers accountable, or are the investigations simply done to give the impression that something is being done?

The Star article quoted Durham Inspector Bruce Townley who emphasized that while the public may see some police officers as "cowboys", they are only human – like anyone else. Like everyone else, these officers need to be held criminally responsible for the serious harms and deaths they cause.

Do you think police officers that cause harm when on-duty should be subject to the same punishments as an average citizen causing the same level of harm would be?

Should we be using the SIU to investigate these officers or should we attempt other means? Do you think the SIU’s stated goals are actually the goals it wants to fulfill?

Posted by Melissa Crowley (Windsor Law I)

Alberta: Moving Backward in Police Complaints Process?

2010-11-07T12:41:00.009-05:00

Solicitor General Frank Oberle proposed changes to Alberta's public police complaints process on Thursday, claiming that such changes are necessary to improve the efficiency of the process. The proposed changes would include restrictions on who can launch a complaint, increased powers to dismiss frivolous complaints and a more limited appeals process.

Under Bill C-27, only those directly affected by an officer’s behaviour, including loved ones or witnesses would be allowed to make submissions. Effectively ending the ability of third-parties to make complaints on behalf of those who are unwilling or unable to file a complaint themselves.

The Canadian Trial Lawyers’ Association is especially concerned because it will prevent them from making claims on behalf of large and vulnerable groups who are afraid to proceed on their own. In recent years, the CTLA has made numerous claims against the Edmonton Police Service, such as in the case of homeless people who were allegedly rounded up in a police van and left in another part of the city.

Under the amendments, groups and individuals wishing to make a third-party claim would still have the option of bringing a concern to the police chief, but the case would proceed at his or her discretion. In cases of “non-serious” incidents the police chief’s decision would be final, removing the current option to appeal to the Law Enforcement Review Board.

Oberle has also proposed greater powers for cases to be dismissed when the complainant declines to participate in a hearing or misbehaves, provisions for fewer oral hearings, and the use of alternative dispute resolution when appropriate. He believes that sometimes all that is required to resolve a case is a simple apology or acknowledgment of the complaint and that these proposals will simply prevent those who see a story of police misconduct in the news from filing a complaint.

Do you think these changes will improve efficiency in the complaints process? Even if they will, do they go too far in limiting the effectiveness of police complaints in Alberta?

Do you agree that most police complaints can be resolved effectively with an apology?

Do you think 3rd parties should be able to lodge a complaint against the police without the involvement of the primary individual? Is the Ontario approach any different?

Posted by Pamela Santora (Windsor Law I)

European Ethnic Minorities: Discrimination & Rights Awareness

2010-10-25T18:25:00.003-04:00

Recently, The European Agency for Fundamental Rights, conducted a survey among 23,500 people from selected immigrant and ethnic minority groups in all 27 Member States of the European Union. The purpose of the survey was to gauge the respondent’s feelings on personal experiences of discrimination and racial profiling. Much of the study focused on the Roma, who as a group experience significant discrimination within the EU.

The results of the survey were originally presented in 2009 at the Fundamental Rights Conference. Throughout 2010, the results were re-released in reports on key issues, such as Police Stops. The subject matters vary and more details can be found here: http://fra.europa.eu/fraWebsite/eu-midis/index_en.htm.

Focusing on the Belgian experience, the report found:

“In Belgium, 85% of majority population respondents found the police respectful during their last police stop, compared to 42% of North African and 55% of Turkish respondents.”

Furthermore, it was overwhelmingly common that the minorities discriminated against were not likely to report their experiences. This also reaffirmed the reality that victims of discrimination were unlikely to report their situations, not aware of their right to file a complaint.

All of the outputs can be found at the above link.

While this is a different platform, the findings can easily mirror the situations in Canada. It seems that many cases of discrimination are left unreported as many are unaware of the methods to raise a complaint, unaware of their rights, and may be afraid to raise an issue against a powerful institution like the police.

How can we remedy such experiences and concerns? In this study, some solutions put forward were to encourage those who suffer to raise complaints, provide them access, and give them the sufficient tools to properly report. These are ambitious and beneficial goals which are within the scope of LEAP’s numerous projects including our partnership with Windsor Law’s Community Legal Aid Clinic.

What sorts of remedies would you bring forward? How effective would you expect them to be?

Lindsay Traves
(Windsor Law I)

SCC Narrows the Scope of Right to Counsel

2010-10-13T18:48:00.004-04:00

In R. v. Sinclair, 2010 SCC 35 the Supreme Court narrowed the scope of s.10(b) of the Canadian Charter of Rights and Freedoms determining that it, “does not mandate the presence of defence counsel throughout a custodial interrogation”. In a 5-4 decision Chief Justice McLachlin and Justice Charron wrote for the majority, concluding, “that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b)”.

The majority went on to clarify that a request to consult counsel, after the initial conversation, is not sufficient to re-trigger the s.10(b) right without a change in circumstances suggesting that the choice faced by the detainee has been significantly altered. Such, “changed circumstances may result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the detainee may not have understood the initial advice of the right to counsel.”

The danger, raised here by the minority as written in two separate dissents is twofold. First as Justice Binnie explains:

“What now appears to be licenced as a result of the “interrogation trilogy” — Oickle, Singh, and the present case — is that an individual (presumed innocent) may be detained and isolated for questioning by the police for at least five or six hours without reasonable recourse to a lawyer, during which time the officers can brush aside assertions of the right to silence or demands to be returned to his or her cell, in an endurance contest in which the police interrogators, taking turns with one another, hold all the important legal cards.”

Justice Binnie goes on to suggest that the breach of Mr. Sinclair’s Charter right did not occur at the outset of the interrogation, but later on, after several hours of interrogation. When new evidence was presented to Mr. Sinclair and he made five separate requests to speak with his counsel, he was clearly unsure as to whether the advice he had received was still sound. Under s. 10(b), a six-minute phone call at the outset of the investigation cannot have effectively counseled Mr. Sinclair regarding the interrogation involved in a second-degree murder charge. As the situation evolved, the advice of counsel may have changed, and the inability of counsel to acquire that information by being present clearly hinders his or her ability to provide advice to the client.

Justice Binnie outlines an alternative set of justifications for additional consultation with counsel in objective factors such as: the extent of prior contact with counsel; length of the interview at the time of request; extent of information provided by the police which may reasonably suggest that the advice provided in the initial consultation may have been overtaken; existence of exigent or urgent circumstances which prevent delay in the interrogation; a legal issue arising in the course of the interrogation; and the mental and physical condition of the detainee as is or ought to be apparent to the interrogator.

A second dissent delivered by Justices LeBel and Fish raised a concern regarding the effectiveness of s. 10(b) if it is to be invalid at the precise moment it was intended to provide protection. The dissent suggests:

“It [s. 10(b)] is not just a right to the assistance of counsel, but to the effective assistance of counsel, and one that this Court has characterized as a principle of fundamental justice. This right has not been granted to suspects and to persons accused of crime on the condition that it not be exercised when they are most in need of its protection — notably at the stage of custodial interrogation, when they are particularly vulnerable and in an acute state of jeopardy.”

When a short consultation is followed by a lengthy interrogation it is reasonable to expect that the detainee may believe that attempting to maintain his or her right to silence is futile. That he or she may feel it necessary to make a statement when presented with incriminatory evidence by the police; a statement to which the police are not entitled.

Do you think this will open the door to excessively aggressive interrogation techniques by police?

Should Parliament step in to create a legislated right to counsel throughout interrogation? Is this likely?

Posted by Pamela Santora (Windsor Law I)