CSIS did not disclose informant failed polygraph

On June 5, 2009 the Federal Court released details of the “significant” information that had been withheld by CSIS about a human source. The expurgated version of the top secret May 26th letter delivered to Justice Noel reveals that the informant who had implicated Mohamed Harkat as an al Qaeda operative did not pass a polygraph in 2002. The polygraph had been administered because of undisclosed issues that caused CSIS to question the informant’s loyalty to the Service. Although the polygraph results indicated that the informant had been truthful about his own associations with other agencies or militant organizations, the examiner concluded that the informant lied when asked other questions, presumably about Harkat. CSIS had previously disclosed to the court that the informant had been truthful about certain questions – but failed to disclose the negative polygraph results related to Harkat.

The expurgated letter also reveals that Justice Noel has been urging CSIS to approach “foreign agencies” to reconsider their position on the release of their information relevant to the case. Such consent is required by the third party rule, pursuant to which information that originated with a foreign agency is protected by national security confidentiality unless the foreign agency lifts its caveats. CSIS had previously refused to seek consent again from the relevant agencies, but as a result of the developments involving the informant, CSIS confirmed on June 5 that the Ministers have directed CSIS to seek the consent of foreign agencies to release information to Harkat.

CSIS is clearly worried about its credibility given these events. In his June 5th letter, Michael Duffy, CSIS’ senior general counsel, acknowledged the seriousness of the issue and stated that the “Service is resolute in its determination to restore judicial confidence” in the integrity of the Service’s evidence and in the credibility of its employees. Duffy announced that an internal investigation is being conducted into the matter, and all security certificate related human source matrices (disclosures) were being reviewed by two intelligence officers, two senior managers and a Department of Justice lawyer.

For its part, the Court is recalling three CSIS witnesses who had previously testified in closed hearings. Justice Noel has also reserved the right to call other witnesses should circumstances so warrant.

In an interview with the Globe and Mail, Harkat’s lawyer Norman Boxall stated that in light of all of the facts, he can only conclude that the negative polygraph results had been buried. This is particularly problematic in security certificate cases since none of the original notes of interviews have been kept and only summaries prepared by CSIS have been provided. Given that CSIS had actively misled the Court, Boxall believes that none of these summaries can be trusted, and that the integrity of the security certificate process is in question. He also commented that CSIS cannot be relied on to review its own procedures, and that any serious review should be conducted by an outside body such as a judge or the Security Intelligence Review Committee.

Posted by Professor Jasminka Kalajdzic, University of Windsor, Faculty of Law

More complainants come forward in case against OPP officer charged with using false evidence to issue tickets

LEAP reported earlier this week that Ontario Provincial Police officer Sergeant Dennis Mahoney-Bruer had been charged with three counts of breach of trust and one count of attempting to obstruct justice, after he allegedly falsely charged three drivers with speeding in the past month. Since the Toronto Star reported the story, other complainants have come forward.

This morning, the Star reported that Farzooq Sayed was pulled over by Mahoney-Bruer last Halloween and was ticketed for driving 156 km/hr. Sayed agrees that he was speeding, but alleges that he was not going as fast as 156 km/hr. Sayed recalls: “[t]he police officer came up to my window and the first thing he asked me was, ‘[w]hose car is this?’” Sayed is a 23-year-old racialized man, a student at Centennial College, and drives a Porsche Carrera 4S.

Ismet Breznica, another alleged victim of Mahoney-Bruer’s alleged arbitrary ticketing, was informed earlier this week that the two charges laid against him have now been stayed. Breznica reports that when he inquired with Mahoney-Bruer as to why he was being pulled over, the officer responded by saying “[t]oday I’m only picking white cars.” Breznica was driving a white 2008 Mercedes-Benz. In the Star this morning, Breznica is quoted saying “[s]ometimes it makes me wonder if I want to live my whole life in this country. Don’t treat me like a criminal. I’m not a criminal…”

According to the Star, since Mahoney-Bruer’s charges were reported last week, as many as 250 provincial charges laid by him are now under review. One of the most integral questions to be asked will be why Mahoney-Bruer was doing this, if it is found that he was. Did the race of the drivers play a role? After Sayed’s report it is now clear that at least one complainant is racialized. Is this the case for all of the alleged false arrests? As more people come forward, this information may be unveiled. In the meantime, LEAP hopes that the OPP will consider the role that race may have played during their investigation.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Activist group files complaint about investigation of Villaneuva death

Earlier this week, LEAP reported on the issues not being investigated at the coroner's inquest looking into the death of Fredy Villaneuva, an 18-year-old who was fatally shot last August by Police in Montreal. We now learn that the Coalition against Police Repression and Abuse, an activist group, is filing a complaint with Quebec’s Police Ethics Commission about the investigation of the incident, an investigation the group alleges was flawed.

The two officers involved in the shooting were never charged. However, when the inquest into Villaneuva’s death began last week it was discovered that those two officers were never even questioned during the investigation, but instead asked to provide written statements to the investigators a week after Villaneuva’s death. This aspect of the investigation stands in stark contrast to the treatment of civilian witnesses, who were “separated and questioned the night of the shooting.”

The inquest has been put on hold due to the Villaneuva family’s refusal to participate. This refusal stems in large part because of their desire dor a more thorough investigation into the systemic issues surrounding the shooting, such as racial profiling.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

CSIS hid evidence in Harkat case

Disturbing news of CSIS misconduct emerged last week in the security certificate review hearing of Mohamed Harkat. Federal Court Justice Simon Noel released an unprecedented decision ([2009] F.C.J. No. 619) ordering CSIS to disclose the name of a key confidential informant, and to produce its uncensored file on the informant, to the two special advocates charged with protecting Harkat’s interests in the in camera proceedings.

Justice Noel’s ruling came a day after CSIS delivered a top secret letter to the judge acknowledging that information about the CSIS source, dating from 2002 and 2008, had not been presented to the Court. Justice Noel had specifically asked for all evidence relevant to the reliability of the witness in an in camera hearing last year and was assured all had been given. The new information, wrote the judge, is “significant”, and goes to the weight to be given to the informant’s evidence.

Late last year, the special advocates sought disclosure of CSIS’ intelligence files and access to CSIS informants who had implicated Harkat as a sleeper al Qaeda operative. At that time, the Ministers took the position that they had complied with the Court’s previous disclosure orders and had provided all of the information required to be disclosed in accordance with the Supreme Court of Canada’s decision in Charkaoui #2, [2008] S.C.J. 39. The Ministers advised the Court that the special advocates were in possession of all the information in the possession or control of CSIS regarding Harkat. On this basis, Justice Noel rejected the request for further disclosure, and further held that CSIS informants’ identities were protected by covert human intelligence source privilege, analogous to the common law police informant privilege.

In last week’s ruling, however, Justice Noel referred to the one exception to the rule – if failure to disclose the information would constitute a “flagrant breach of procedural justice” and bring the administration of justice into disrepute. After reviewing the contents of the Ministers’ letter, Justice Noel concluded that “the Special Advocates have a need to know the contents of the human source file even if this results in the revelation of the source's identity. The rule of law requires no less. Once the Court has evidence that leads it to question the completeness of the information being provided to it by the Ministers, in apparent violation of their obligation of utmost good faith, it must allow the Special Advocates access to all information which they have a need to know” (at para. 14).

In light of “possible prevarication” by CSIS witnesses and the withholding of important evidence, Justice Noel also stated that the Court would review all orders issued and evidence provided to date “to see if any further judicial action is required to preserve the integrity of the administration of justice” (at para. 15). The hearing to assess the reasonableness of the security certificate has been postponed.

In the meantime, Justice Noel is considering submissions by Harkat’s counsel that a search of Harkat’s home in mid-May 2009 was unconstitutional. Thirteen Canadian Border Service officials, three police officers and three dogs searched the home and seized, among other things, photo albums, Harkat’s wife’s computer (containing correspondence with Harkat’s counsel), and her agendas. During the June 3rd hearing, Justice Noel expressed concern that the search was “out of proportion” and “extremely instrusive”.

Posted by Professor Jasminka Kalajdzic, University of Windsor, Faculty of Law

Older-model RCMP tasers fail test

Unquestionably, the use of conducted energy weapons (“Tasers”) by Canadian law enforcement agents has been met with tremendous scrutiny. On June 1, 2009, RCMP Commissioner Bill Elliot stated that approximately 1600 M-26 (older-model) Tasers would be removed from RCMP use until they could undergo further testing. This decision resulted from an order of the B.C. government to cease use of approximately 600 M-26 Tasers when tests revealed that the weapons were not performing properly. According to Elliot the Tasers were “under-delivering a charge, not over-delivering.” Taser International, who produces the weapons, said “[a] lower energy output equates to a higher safety margin and therefore, the medical safety of these devices is not in question.”

Elliot confessed that it is the RCMP’s objective to test all of their weapons. He further stated that “I cannot tell you we have currently completed that testing.” To make matters worse, the RCMP’s testing of the Tasers did not reveal the same defects that were uncovered when the B.C. government tested them.

Before the order from the B.C. government, the RCMP were in the process of replacing the M-26 Taser models (the older models now being tested) with "'the more reliable' and smaller X-26 Taser,” the same model that four officers used to shock Robert Dziekanski, who died in 2007.

Elliot further stated that “[w]e want to make sure that the weapon…in the odd case that it is resorted to, that it does what our officers should expect it to do...”

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Montreal taxi driver allegedly pulled over and fined on account of race

After David Bastien, a 25-year-old Haitian taxi driver in Montreal, was pulled over and allegedly “unfairly handcuffed” and fined by Constable Jean-Francois Croteau, concerns about why this happened and why it has happened more than once are surfacing.

On April 5, 2009, David Bastien reports that he was ordered by Croteau to pull over and provide his driver’s license. He further alleges that Croteau pulled him out of his car and handcuffed him. Croteau proceeded to issue four fines against Bastien, reports the Montreal Gazette. The fines included:

-“$638 for ‘having refused to produce for examination by a peace officer a (driver’s) permit’”; -“$169 for ‘being the driver and not behaving in a dignified or civil manner’”;-“$100 for ‘not ensuring that the inside of the taxi is clean’”;-“$169 for ‘being a driver and raiding with the taxi,’ trying to pick up another’s fare.”

Since the incident, Bastien has gone to the Quebec Human Rights Commission and the Police Ethics Commission with his case against Croteau, but both Commissions are yet to hear it. According to the Gazette the complaints filed by Bastien state, among other things, that “most taxi drivers are afraid of reprisals by police and do not have confidence in the complaint procedure.” The precise evidence that Bastien has to substantiate this claim, if any, is unknown. However if proven to be true, it is a powerful proposition, especially considering that this is not the first time recently that a Montreal taxi driver has been detained and issued what seems to be an outrageous amount of tickets at once. In March and May, respectively, another officer, Constable Pierre Belanger, issued $600 in tickets to one cab driver and $2,310 in tickets to another. Both Croteau and Belanger work out of Station 21. When asked about these incidents, Commander Alain Simoneau replied that “[t]his is not a situation of racial profiling in any way,” but “application of the highway code, pure and simple.” Whether such a response will placate taxi-drivers in Montreal is yet to be seen. However, with the recent incident in Ottawa regarding an alleged police attack on a taxi-driver, drivers are being given more and more reasons to distrust the police. It seems too coincidental that all four taxi drivers in these two cases are racialized.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Chair of the Commission for Public Complaints Against the RCMP reports on inadequate RCMP investigation

Last Wednesday, May 27, 2009, the Commission for Public Complaints Against the RCMP released a report showing that the British Columbia RCMP made significant errors in their investigation of the death of Kevin St. Arnaud.

St. Arnaud was killed by Constable Ryan Sheremetta on December 19, 2004. St. Arnaud broke into a pharmacy that night, causing Sheremetta to respond to the call. Constable Colleen Erickson also responded to the call in a separate police car. Sheremetta saw St. Arnaud running from the mall where the pharmacy was located and pursued him in his police car. Ultimately, Sheremetta continued the pursuit on foot. Then, when Sheremetta was yelling for St. Arnaud to stop running, St Arnaud turned around and came back towards Sheremetta. Sheremetta says that he then fell on his back, from which position he shot St. Arnaud 3 times in the chest. Constable Erickson’s story is different, however. She says that she observed Sheremetta, while standing in a police shooting stance and not on his back as he reported, shoot twice at St. Arnaud from a distance of approximately ten feet. The autopsy showed that St. Arnaud was shot 3 times.

On March 15, 2006, the Chair of the Commission for Public Complaints against the RCMP, Paul Kennedy, initiated a complaint regarding the St. Arnaud case. The complaint addressed whether members of the RCMP improperly entered into a situation with St. Arnaud that resulted in his death and whether a member of the RCMP improperly discharged his firearm in the incident. The complaint was later amended to question whether members of the RCMP failed to conduct an adequate investigation into the death of St. Arnaud.

Eventually, the RCMP began an investigation as a result of the complaint. The results of the investigation were reported in the Commissioner’s Final Report dated June 26, 2008. This report stated that RCMP members properly responded to the break-in; that Constable Sheremetta’s actions were reasonable because he believed he would suffer grievous bodily harm or death, and that generally the RCMP conducted an adequate investigation into St. Arnaud’s death.

On October 29, 2008 the Commission concluded generally in its interim report that some elements of the RCMP investigation in St. Arnaud’s death were inadequate, some elements of the RCMP investigation into St. Arnaud’s death lacked impartiality, and that the investigative team failed to follow the Major Case Management Model.

The Commission’s findings and recommendations stated, among other things, that “it is imperative that the RCMP foster the confidence of the Canadian public by demonstrating that it embraces the best practices of a policing organization…it is not helpful for the RCMP to engage in rationalization and minimization…A frank acknowledgement of deficiencies or errors, where they exist, would serve not only to establish that the RCMP is accountable for its actions but that it is a principled organization worthy of the public trust.”

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Demands that Villaneuva inquest consider racial profiling as factor in police shooting of unarmed Hispanic teenager in Montreal

The public inquest into the fatal police shooting of 18-year-old Fredy Villanueva was suspended on the same day it began, last Monday, May 25, 2009. The coroner conducting the inquiry suspended it because the victim’s family and the two other men injured during the altercation indicated that they will not participate, leading the coroner to conclude that the inquest was tilted in favour of the police. The coroner who is a Quebec Court judge, Robert Sansfacon, decided that under the circumstances he could not continue because of the substantial legal representation for the two officers involved, for the police force and for the city, opposed by under-represented victims and family members. He believed this created an imbalance that would lack "fairness and credibility."

Last August, Mr. Villaneuva died after being shot twice as police tried to arrest his brother, Dany. The police officer who shot Mr. Villaneuva, Constable Jean-Loup Lapointe, said he fired when the group tried to overpower him and his partner. Two other men with Mr. Villaneuva were shot during the altercation, but survived.

The Villaneuva family and the two other men that were shot had been designated as “interested parties” by the coroner, but while the province agreed to pay for legal representation for the Villaneuva family, it refused such compensation for the other two men. Both parties withdrew as a result. Most of the intervener groups, which previously included civil-rights defenders and race-relations activists, have also withdrawn. Only five interveners remain and all represent the police.

Last Tuesday, Public Security Minister Jaques Dupuis stated that he would provide for the legal costs of any interested parties that could assist with the inquiry. However, legal fees are not the only concern. The victims and the Villaneuva family believe the inquest to be too narrowly-focussed. They want the investigation to go beyond Mr. Villaneuva’s death and examine issues such as racial profiling by police, the disproportionate number of visible minorities among victims of police shootings and the socio-economic situation in Montreal North.

The Villaneuvas and the two other victims have chosen to stand up to a situation that they foresee creating an unfair result. They clearly have no interest in an investigation that will reveal what they likely don’t believe; that the fatal shooting was provoked. With an inquest that even the coroner believes to be skewed in favour of the police, their concern seems to be well-founded. More appropriately, they would like the investigation extended beyond Fredy’s death to the systemic issues taking place in Montreal North, often referred to as the city’s Bronx. Their boycott of the inquest has not, as of yet, produced any positive results. The situation has seemed to remain at a standstill since last week. However, if nothing else, their boycott on the inquiry has brought an awareness of issues of poverty and racial inequality into the public forum once again. Hopefully, the case will cause the public to increase the standard of accountability they require from officers in “the Bronx.”

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

OPP officer charged after allegedly using false evidence to lay speeding charges

Ontario Provincial Police officer Sergeant Dennis Mahoney-Bruer has been charged with three counts of breach of trust and one count of attempting to obstruct justice, after he allegedly falsely charged three drivers with speeding in the past month, the Toronto Star reported today.

The alleged false charges have led the OPP to begin a review of traffic stops and some criminal cases. Prosecutors and the OPP will review Mahoney-Bruer’s past cases to see if there is any evidence of other suspicious activity, but the police have not determined nor disclosed how in depth or far-reaching this investigation will be. However, Mahoney-Bruer has worked for the OPP for 12 years.

Thus far the response of the OPP is positive, as it was quick to initiate the investigation. At this point no motive for the alleged false charges has been disclosed, but in order to restore public confidence in OPP officers involved in highway traffic enforcement, one may be required. OPP commissioner Julian Fantino wrote in a statement regarding the charges "I believe that the public trust is a fundamental cornerstone of the OPP and policing."

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Court of Appeal allows police disclosure of withdrawn charges pursuant to a consent for a Vulnerable Persons Search

In Tadros v. Peel (Police Service), the Ontario Court of Appeal held that police can disclose the existence of charges withdrawn where the person consents to a Vulnerable Persons Search for the purposes of employment. The Court left open whether disclosure could occur in the absence of consent pursuant to the relevant provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 or the Police Services Act, R.S.O. 1990, c. P. 15.

The respondent, Tadros, had been charged with four counts of sexual assault and four counts of sexual exploitation against children who lived in his group home. Ultimately, the charges were withdrawn when Tadros entered into a peace bond. Subsequently, Tadros sought employment and consented to a Criminal Records Search and Vulnerable Persons Search by the Toronto Police Service. When he learned that the Peel Service had disclosed the charges to the Toronto Police Service, Tadros brought an application for an order requiring the Peel Police Service to expunge any reference to the withdrawn criminal charges from their records. He was successful in the lower courts.

The Court of Appeal allowed the appeal and set aside the injunction. The Court reasoned that because Tadros had already received the results of a Criminal Records Search and was then asked for further consent to disclose additional information for the Vulnerable Persons Search, he should have reasonably assumed that information about the eight charges may be disclosed. Second, even if by consenting, he was unaware that the withdrawn charges would be disclosed, he became aware when he received the reports and was turned down for the jobs he was applying for. The Court, therefore, concluded that Tadros had given his consent to the disclosure of the eight charges, and therefore set aside the injunction order made by the Superior Court.

Tadros also cross-appealed the lower court holding that the disclosure of information did not violate his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms. The cross-appeals were dismissed. With regards to s. 8, the Court held that the respondent’s privacy was not violated because the Peel Police Service had lawfully obtained and retained the information. With regards to s. 7, the Court held that disclosure by one police service to another did not infringe on the respondent’s liberty or security of the person. Tadros also failed to identify an operative principle of fundamental justice even assuming there was an infringement of his liberty or security of the person.

Posted by Ashley Paterson (Law II) (Summer LEAP Intern)

How far-reaching are police checks of the background of prospective jurors in Ontario?

According to a series of stories this week by the National Post, police forces in Barrie and the surrounding region have allegedly been conducting background checks of potential jurors without their knowledge for several years at the request of the local Crown Attorneys. The practice allegedly dates back at least as far as December 2004. The National Post reported that the background checks were carried out using police databases. The information in the databases, which are administered by the Canadian Police Information Centre (CPIC) in Ottawa, are normally used by police in criminal investigations and require the consent of an individual to run a check that is not part of an investigation. The searches were allegedly an attempt to rid the jury pool of what the Crown considered to be “disreputable persons.”

Jurors were not told of the background checks and the information was not disclosed to defence lawyers, as is required under the legal and ethical obligations of the Crown. Although individuals convicted of an indictable offence cannot serve as jurors, the information obtained by the Crown through the police databases allegedly detailed whether a potential juror had been charged with a minor offence, had charges dropped or had been involved with the mental health system.

These alleged background checks raise issues of transparency with respect to police forces in Ontario, the Ontario Ministry of the Attorney-General and the Crown offices in Barrie and Simcoe County. If, in fact, this practice has been going on since 2004 there are likely countless cases that have been affected by it. Why did police comply with such requests from the Crown? The CPIC code of ethics does not allow for the police databases to be used for this purpose. Unquestionably, jurors that have served in Simcoe County since 2004 will be left wondering exactly what information was obtained about them by various police services and ultimately surrendered to the Crown. It is now necessary for Barrie Police Services to explain why they have participated in such background checks, in order to restore their transparency and accountability to the public. Only then can “…the people affected by it…make their own decision about a remedy,” said Frank Addario, president of the Ontario Criminal Lawyers’ Association.

This week, the Ontario Ministry of Attorney-General issued a directive ordering Crowns to cease background checks and permitting only checks to ensure that prospective jurors had not been convicted of an indictable offence.

Posted by Ashley Paterson (Law II) (Summer LEAP Intern)

RNC Police Chief apologizes for conduct of officers who mistook autism for intoxication

When Diane Spurrell’s autistic son, Dane, did not return home from the video store on April 18, 2009, she knew something was wrong. While walking home, Dane was approached by officers who instructed him to walk on the sidewalk. Dane has stated that there was no sidewalk in the area. Thus, when Dane failed to cooperate, he was taken into the local lock-up where he spent the night. Officers there refused to allow him to call his mother, prohibiting him from calling anyone but a lawyer.

To make matters worse, the second officer on the scene defended his actions on the CBC website. Responding to negative comments, the officer wrote “I challenge all you arm chair quarterbacks to spend a week in my job. I have 15 years on patrol, and can spot a person who needs help…”

Chief of the Royal Newfoundland Constabulary (RNC), Joe Browne, met with Dane on April 23, 2009, to formally apologize for the behaviour of the officers.

Why did this happen? Chief Browne explains that the first officer on the scene was fairly young, and followed standard procedure, yet he concedes that the case could have been handled differently from the start. Unquestionably, an excuse regarding the inexperience of the officer is not enough. Police should be trained to adequately differentiate autism and other inherent conditions from intoxication and if there is any question as to whether the person is intoxicated a breathalyser should be administered. The RNC has made arrangements to start offering autism awareness training to officers. In fact, the RNC had already been proceeding with training on how to recognize and work with people with autism. Comparatively, in Detroit, police receive special training on how they should deal with handicapped, mentally ill, and homeless citizens. This training was adopted in 2003 as part of a program to increase sensitivity and accountability. For further discussion of the Detroit intiative, see Police taught proper response to mentally ill suspects.

Diane Spurell has been supportive of the RNC’s response since the incident and has dropped a criminal complaint against the officers. Hopefully, the new RNC training procedures will prevent similar incidents in the future.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Ottawa taxi driver case raises issues of racism, police accountability and transparency

On May 11, 2007, Sami Aldoboni, an airport taxi driver, was driving on the Airport Parkway in Ottawa when a male driver in an SUV tried to overtake him on the single-lane road. The man in the SUV allegedly followed Aldoboni to the airport taxi drivers’ parking lot where he got out of the SUV and, while shouting racial insults at Aldoboni, shoved him to the ground and beat him until other drivers intervened. Aldoboni suffered two broken bones in his wrist and a broken index finger. Atiya, a driver who intervened during the altercation, reports that when he confronted Aldoboni’s attacker, the man showed him a police identification card. When police arrived at the scene, witnesses reported that the assailant was not handcuffed, but instead handed a pen so he could write his own statement. Further, the two police officers then got into the backseat of the SUV with the assailant driving, and the three left the parking lot together.

Although the incident happened two weeks ago, no charges have been laid. The Special Investigations Unit (SIU) is investigating the off-duty officer’s actions to determine if charges should be laid at all.

This incident raises serious issues of both overt and systemic racism within the Ottawa Police Service. A 2006 census of the Ottawa Police found racialized individuals under-represented among its members, sometimes by large margins. It is a frightening incident for the Ottawa community to have a member of their police service allegedly act so overtly racist, and apparently not afraid to connect that racism to his identity as a police officer.

A second issue raised by this incident is the accountability of officers in the Ottawa Police Service. The reported reaction of the police officers that came to the scene is an indication that officers involved in criminal activity are treated much differently than are civilians. One would presume that if the assailant was a civilian he would have been handcuffed, put in the back of a cruiser and taken to the police station. The way the assailant was actually treated in this case sent a strong message to those who witnessed it; and later to those who read about it. As one witness has said: “It was like, ‘He’s a police officer, we care about him. You’re just a taxi driver, we don’t care about you.’”Further, without having laid charges to date, we are forced to question if this officer will be held accountable at all. In a similar attack on a citizen by police officers in Vancouver in January, charges were laid in one week.

Lastly, this incident also raises issues of transparency. To date, the name of the police officer has not been disclosed by the Ottawa Police Service. Since the investigation of the officers that came to the scene has been postponed until the assailant’s investigation is completed, one would hope that the assailant’s investigation would be completed promptly. Yet the Ottawa Police Service has remained quiet about the incident since the Chief of Police met with Airport taxi drivers the day after the incident. While the response from taxi drivers after that meeting was positive, I’m sure that two weeks later they are getting curious as to what might come of the case.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

CRARR releases "Any Negro Will Do" report on misuse of race in suspect descriptions

For Immediate Release
Montreal, Canada, May 6, 2009 --- Authorities must enact measures to prevent the police from using vague, race-based, suspect descriptions to stop and arrest young Black and other racialized men even when they do not resemble the suspect or when the description is so general that every male of colour can be subject to police stops. This is the main recommendation of a report released by CRARR today to highlight a frequent situation encountered by many innocent young men of colour who end up arrested and being roughed up by police officers due to mistaken identity. Produced with private donations and technical support from the Pro-Bono programs of the faculties of law of McGill, UQAM, and Université de Montréal, the 80-page report, entitled Any Negro Will Do: Race and Suspect Description - the Slippery Slope towards Racial Profiling, provides a detailed review of the practice. It reviews case law in Quebec and other provinces, and submits 11 recommendations for actions to
prevent such a practice.

Named after a popular American expression, the practice involves the police broadcast and use of vague suspect descriptions based only on race and gender (usually, “a Black man”) that leads officers to stop, detain, arrest and point guns at individuals whose looks often bear little resemblance to the suspect other than the fact that they share the same race. The problem can be compounded by the fact that many police officers lack training and personal knowledge with racial diversity, which can lead to further complications in identifying race (for instance, mistaking a South Asian for an Arab).

This practice can be a result of individual or institutional conduct based on conscious or hidden bias, ignorance or negligence. Since it involves the description of a specific person, race-based suspect descriptions that contain little information on features other than race and gender, differ from criminal profiling, which involves the elaboration of a profile of a group or type of persons likely to commit a particular crime based on a hosts of factors; and racial profiling, which involves using race as a proxy to subject all persons associated with that race to heightened scrutiny and differential treatments, without any valid motives or any report on a specific suspect.

As a result, race-based suspect descriptions, no matter how vague, tend to be considered as legitimate and necessary to police work, although there have been little public policy debates on the issue.

Further, the courts have generally been upholding the practice and ruling in favour of the police. The report examines specific decisions by the Supreme Court (R. v. Mann, 2004), and by other courts or tribunals in Ontario (R. v. Smith, Superior Court, 2004), Quebec (Commissaire à la déontologie policière c. Chan et Pépin, Police Ethics Committee, 2006) and Alberta (Coward v. Alberta Human Rights and Citizenship Commission, Court of Queen's Bench, 2008) that rejected victims' challenges to what is seen as racially biased police conduct and that upheld the constitutionality of the police stops and arrests.

To illustrate the problem, CRARR presents the stories of Black men in Montreal who have been the target of this “Any Negro Will Do” practice, including:

❏ A 19 year-old McGill Black student who came out of a Wyclef Jean concert at the Metropolis club and was arrested at gunpoint by the police acting on a report of a “Black man wearing red pants and carrying a gun” near the St-Laurent metro station. One officer even asked him if he belonged to a gang;

❏ A 21-year-old college student who was stopped at gunpoint by two officers in Laval when he was walking home at night and handcuffed. The police was looking for a “Black man with a backpack” and found that he matched the suspect description;

❏ A 28 year-old biracial man who was going from his car on Guy Street, to his workplace downtown, when he was cut off by a police car, arrested at gunpoint and handcuffed by a policewoman who also told him that his name was fake since no Black man could carry a “Québécois” name;

Reviewing Canada's international obligations on preventing racism in policing as well as policy actions in Quebec and Ontario on racial profiling, the report outlines challenges facing authorities and racialized communities with regard to race-based suspect description and calls for measures to protect people of colour from such abusive and dangerous police actions. Some of the report's recommendations to the government, police departments and civil rights watchdog agencies include:

❏ Officially recognize that the practice of using vague, race-based suspect descriptions is discrimination as it exposes all members of a racial group to disproportionate scrutiny and harm;

❏ Require that police suspect descriptions be more specific in terms of physical description (skin colour, height, weight, age group, etc.) and that they mention time and geographic scope to narrow the search and avoid casting the wide net of discrimination on all members of a racial group in the area;

❏ Avoid lengthy legal procedural challenges to claims by victims of the “Any Negro Will Do” practice and settle early, especially in cases of obvious mistaken identity and immediate admission of such an error by the police officers involved;

❏ Adopt policies enabling the Quebec human rights commission and the Quebec Police Ethics Commissioner to better handle complaints of the “Any Negro Will Do” practice. Pending such adoption, these agencies should suspend all decisions on these complaints to avoid inadequate investigation and incorrect analyses;

❏ Train future and current police officers, judges, and members of administrative tribunals on issues of race, racial profiling and race-based suspect description.

Source: Fo Niemi, Executive Director
Gabrielle Michaud Sauvageau, Communication and Research Officer
CRARR: (514) 939-3342

Refuse Profiling? The Supreme Court of Canada decision in R. v. Patrick

In 2003, Calgary police suspected Russell Stephen Patrick of operating an ecstasy lab in his home. They conducted six warrantless searches of garbage bags Patrick left on his property for garbage collection. The seized bags were opaque and situated in cans positioned on top of a garbage receptacle built into his fence. Officers had to reach across the property line to take the garbage. On the basis of the items seized, a search warrant for his home was obtained and upon its execution he was charged with unlawfully producing, possessing, and trafficking a controlled substance in contravention of the Controlled Drugs and Substances Act.

The trial judge held that Patrick did not have a reasonable expectation of privacy in the items seized from his garbage. The validity of the ensuing warrant was therefore upheld. This judgment was affirmed by the Alberta Court of Appeal which agreed that Patrick abandoned any privacy interest he had in the items by leaving them out for collection; and any trespass on his property was of a de minimis nature and did not violate his right to be free from unreasonable search and seizure under s.8 of the Canadian Charter of Rights and Freedoms.

In R. v. Patrick, the Supreme Court of Canada upheld his conviction and dismissed the appeal. Justice Binnie, with concurring reasons from Justice Abella, held that Patrick had no expectation of privacy in the garbage, having abandoned it.

The court asked whether the actions of the accused, objectively viewed, would lead to a conclusion that Patrick continued his privacy interest(s) in the garbage. To answer this, the court adopted ‘The Totality of Circumstances Test’, which asks two primary questions:

(1) was there a subjective expectation of privacy; and
(2) was this expectation objectively reasonable.

Even though Patrick may have had a subjective expectation of privacy, the court relied on the issue of abandonment to answer the second question in the negative, finding no objective expectation of privacy in the garbage. Abandonment had occurred when Patrick placed the garbage out for collection in an unlocked receptacle on the boundary line of his property. As such, the court found that no violation of section 8 had occurred.

Justice Abella, in a concurring opinion (which does appear to dissent in part at times), did take issue with the State’s intrusion into one’s garbage issue. She indicates that:

“Individuals who put out their household waste as “garbage” expect that it will reach the waste disposal system: nothing more, nothing less. No one would reasonably expect the personal information contained in their household waste to be publicly available for random scrutiny by anyone, let alone the state, before it reaches its intended destination.”

She noted that there must be a “reasonable suspicion that a crime has been or is likely to be committed” before police should be allowed to search through ones garbage. Finding that such a suspicion existed in the present case, Justice Abella also found no violation of section 8.

The implications of this decision are particularly disturbing. It permits the authorities to profile problem neighbourhoods or problem buildings. In fact, Justice Binnie expressly noted that:

“Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal. To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.” (emphasis added)

There are many “problem” buildings in large urban cities like Toronto, Calgary and Vancouver. The decision in R. v. Patrick expressly permits the targeting and profiling of low income apartment buildings. “Reasonable suspicion” is an amorphous term that grants considerable power and discretion to the authorities. The decision effectively ignores the reality of how most Canadians dispose of their garbage. It implicitly privileges the living conditions of the middle class and upper class who enjoy a higher threshold of “reasonable suspicion” for criminal activity. The poor, marginalized and economically disadvantaged have always ‘enjoyed’ a lower threshold of “reasonable suspicion” for criminal activity.

Patrick may have been a producer of ecstasy, but the decision is far from bliss.

Professor Emir Aly Crowne Mohammed, and
Michael Barbero (Law II) University of Windsor, Faculty of Law

Does public attention on racial profiling impact police behaviour?

In "The Environmental Context of Racial Profiling", (2009), 623 ANNALS of the American Academy of Political and Social Science 52, Patricia Warren and Amy Farrell report their findings on the role of environmental factors like media scrutiny on reducing racial profiling. Based on their assessment of stop and search data from Rhode Island, the authors conclude that "[w]hen monitoring in the form of media attention is coupled with increased administrative accountability, the scrutiny that is generated apparently yields more equitable law enforcement."

Executive Director of Alberta's Serious Incident Response Team calls for more cilivian involvement

Clifton Purvis, the ED of Alberta's Serious Incident Response Team, the unit that investigates serious instances of police misconduct, has called for more civilian involvement of investigations. As he put it, "my personal vision would see a much greater balance so that we'd have about a 50-50 split between civilian officers and sworn police officers." The current team is composed of 12 investigators --- four civilian and eight officers from the RCMP and Edmonton and Calgary Police Services.

Inquest hears state of policing in Aboriginal communities is ‘deplorable’

The recent deaths of two Aboriginal men while in jail has brought the issue of Aboriginal deaths in custody as a form of systemic abuse to the mainstream consciousness - once again. Earlier this month, Commissioner Davies released his report on the inquiry into the, almost decade old, freezing death of Frank Paul. In his report, the Commissioner called for a civilian body to investigate the custodial deaths of citizens. See the discussion of Frank Paul Inquiry in the March 14, 2009 blog entry entitled “Alone and Cold: The Davies Commission Inquiry into the Death of Frank Paul”

By law, an inquest is required when a person dies while in custody. As noted in the Toronto Star article above, the senseless deaths of two young Aboriginal men who were trapped in cells during a jailhouse fire must be acknowledged by addressing the deplorable state of policing in the First Nations community.

After more than three years of waiting for answers, the families of the victims and the community are anxious to finally have an inquest go forward, said Toronto lawyer Julian Falconer, who is representing the family. The two men died in 2006 when fired engulfed the holding facility in Kashechewan First Nations, a fly-in community in northern Ontario.

According to Coroner Counsel Margaret Creal, witnesses are expected to testify that police frantically tried to free the men as smoke filled the building, but fumbled with unlabelled keys and were not successful.

"These are clearly deaths that never had to happen. The state and conditions of detachments in First Nations territories are deplorable,” said Falconer.

The discussion of Aboriginal deaths in custody should be understood in the broader context of the overrepresentation of Aboriginal people in the criminal justice system. The Aboriginality of the person is a significant factor, if not, the dominant factor in leading to their interaction in the criminal justice system and eventual death in custody. Studies, commissions and reports, including the 1991 Royal Commission into Aboriginal Deaths in Custody, have shown that too many of the deaths of Aboriginal people while in custody are as a result of police action or inaction.

While the factors that bring Aboriginal people into contact with the justice system is their disadvantaged and unequal position in wider society, arguably, the most significant contributing factoring leading to the high levels of death of Aboriginal people while in custody is the failure of authorities to exercise a proper duty of care.

The case in Kashechewan First Nations is not in isolation, as Julian Falconer notes in the above inquest, “red flags to governments, both federally and provincially, are on record dating years back yet these deplorable circumstances were allowed to continue."

Andrea Anderson (Windsor Law III)

Canadian Human Rights Commission urges police forces to start collecting data on who and why they stop individuals for investigation

The Canadian Human Rights Commission and Canadian Race Relations Foundation issued a joint statement this week calling for Canadian police and security officials to start documenting who they stop for an investigation including tracking race, age and gender.

The call for such data collection follows the release of report commissioned for the Canadian Human Rights Commission entitled "The Effectiveness of Profiling from a National Security Perspective" which concludes that there is no evidence to support the reliability or moral legitimacy of profiling based on race or other prohibited grounds of discrimination.

The Ontario Human Rights Commission is already on record in support of race-based data collection by any institution or agency where there is evidence of racial profiling or other evidence of racial discrimination. See "Policy and Guidelines on Racism and Racial Discrimination" (Ontario Human Rights Commission, 2003) at 43-48.

The Vancouver Police Department’s new strategy for the Downtown Eastside

The Vancouver Police Department outlined a new change to the way it polices the Downtown Eastside in its board meeting on Wednesday. Under the changed strategy, the VPD will not arrest and charge drug users and expend resources on prosecuting. Rather, they will shift their focus to street disorder. However, the implication of this shift is that it increases the presence of the VPD in the neighbourhood. The business plan identifies a number of behaviours to be targeted by the VPD. These include aggressive panhandling, squeegeeing, open-air drug markets, unlicensed street vending and sleeping in city parks. The 20% increase in the number of public nuisance tickets the police have been handing out to the homeless and other residents in the neighbourhood was not a part of the new plan. However, it is troubling that considerable discretion remains for the police to hand out public nuisance tickets to individuals who have neither a roof over their head or money to pay the fines.

The shift in policy actually seems like a continuation from Project Civil Society, implemented under the former mayor. While David Eby, executive director of the British Columbia Civil Liberties Association, sees these changes as a positive step, he said he would like to see the VPD return items the police have seized from homeless people in recent years. Activists have said that the police strategy in the neighbourhood has been to target homeless people to clean the streets for the 2010 Winter Olympics, view http://www.2010homelesschampions.ca.

Posted by Mandy Cheema (Law III)

Taser to the head can cause seizures

A new report in the Canadian Medical Association Journal says that a taser deployed to the head can cause seizures. Previously, taser-related incidents concentrated on cardiac problems resulting from shots to the chest. The report discusses a police chase involving an Ontario police officer who was mistakenly tasered, ultimately suffering a seizure. Dr. Richard Wennberg, the senior author of the report, concluded that the taser certainly caused the officer’s seizure, as he had no prior history of seizures or underlying conditions that would precipitate a seizure. Listing seizures as a health risk, the report describes the dangers as follows: “Repetitive stimuli such as flashing lights or electrical stimuli can induce seizures in some individuals. The risk may be heightened if electrical stimuli or current passes through the head region.” Taser International had no comment either with respect to the report or the case involving the police officer.

The report is released in the wake of an incident where the RCMP tasered a distraught teenager this week, see http://www.vancouversun.com/news/Mounties+Taser+teen+said+wanted/1406815/story.html. This week the Toronto Police Service released its taser statistics which revealed that two 15-year-old boys were tasered last year. See "Boys 15, Tasered by police, stats show."

Posted by Mandy Cheema (Law III)

Asian lawyer wrongly detained at Vancouver International Airport on suspicion of human trafficking

Earlier this week, Dongdong Huang, a well-known lawyer in Vancouver was wrongfully detained and questioned on a business trip to China. He was accused of being involved in human trafficking. His humiliating ordeal began when a security official searched his carry-on bag and discovered a number of Chinese passports. Huang was on his way to China to return the passports, which belonged to his clients. His clients had lost their bid for seasonal work visas in Canada.

This appears to be a classic case of racial profiling where state officials over-react to equivocal conduct and refuse to accept the reasonable explanation offered by the person being questioned. According to the Globe and Mail story linked above, Customs officials "appeared incredulous when he said he was a lawyer."

Harper government to cut funding of RCMP police complaints commission

According to estimates tabled by the federal Treasury Board, the RCMP Public Complainants Commission which oversees the RCMP will face a substantial cut in funding from the federal government. Commission chair Paul Kennedy has warned that the cuts will force him to cut a policy division created in 2007 to explore the use of tasers and which was responsible for the creation of the new RCMP policy. See the discussion of the new policy in the February 13, 2009 blog entry entitled "RCMP admit dangers of tasers and establish new policy for use and training." The policy division is currently conducting research on how the police deal with mentally ill suspects.

Aboriginal groups call for inquiry into adequacy of police investigation of more than 83 women who have gone missing in BC

FOR IMMEDIATE RELEASE March 11, 2009

Vancouver – A coalition of aboriginal leaders, community groups and family members released an open letter and a set of demands today calling for a public inquiry into the missing and murdered women of the Downtown Eastside of Vancouver and the Highway of Tears, supports for families enduring the current appeal process, and commencement of the trial for the 20 further alleged victims of Robert William Pickton. “We feel it is critically important that this inquiry into the police actions, or inaction, on these files takes place now; we should not be forced to wait until all of the appeals are exhausted by the accused,” said Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs. “Truth, accountability, reform and reconciliation measures relative to this continuing horrific tragedy are all part of what the families of the victims and our Aboriginal communities need to see.” The open letter says that the Provincial Government should not wait for William Pickton to exhaust his appeal routes, and should call an inquiry into the policing and government failings surrounding the murdered and missing women. Pickton’s appeal will be heard for two weeks starting March 30, 2009. The letter also calls for the Inquiry to examine the cases of the missing and murdered women along the “Highway of Tears”, also known as Highway 16 between Prince George and Prince Rupert in northern British Columbia. “Our community sees what’s happening along Highway 16 as exactly what happened in Vancouver’s Downtown Eastside,” says David Dennis, President of the United Native Nations, an organization that represents off-reserve aboriginal people. “We can’t have this tragedy of ignoring these disappearing and murdered women repeat itself – we need to break this cycle.” The letter was sent on Wednesday morning to the Attorney General of B.C., the Solicitor General of B.C. and the Premier of British Columbia. MEDIA CONTACTS Stewart Phillip, Grand Chief, UBCIC – 250-490-5314 Robert Holmes, President, BCCLA – 604-681-1310 David Dennis, President, UNN - (604) 868-4283

Alone and Cold: The Davies Commission Inquiry into the Death of Frank Paul

Ten years in the making, in a 445 page report, Commissioner William Davies, a retired judge, gave a scathing account of the circumstances that led to the death of Frank Paul. Frank Paul, a Mi’kmaq man, succumbed to hypothermia after being dumped into an alley. Earlier on that night, he had been placed in a holding cell by the Vancouver Police Department.

In his report, “Alone and Cold: The Davies Commission Inquiry into the Death of Frank Paul,” Commissioner Davies criticizes both police conduct on the night of December 5, 1998 and the VPD investigation that followed. Citing the inadequacies of the police investigation as being “methodically flawed,” he noted that the investigating officer did not contact several key witnesses. He further stated that the systemic flaws in the investigation procedures of the VPD are so severe that it is not feasible for even external police investigating the VPD. Finally, in a recommendation that has been gaining popularity in British Columbia, he stated that a civilian body should be established to investigate the custodial deaths of civilians. The recommendations relating to police investigations are directed towards the province’s 11 municipal police forces that police roughly 30% of the population, while the RCMP police 1/3 of the province.

What are significant are his findings on death in police custody, an issue that has garnered much attention in recent years. Commissioner Davies recommended a broader interpretation of what constitutes a death in police custody. Davies stated that “a death in a police department jail cell, a death resulting from an officer’s use of force or motor vehicle, or a death arising from some other form of police interaction with the deceased.” While circumstances of police custody deaths will not be limited to the foregoing, the Commissioner has recommended for an expansive framework to the circumstances, situations and police actions that result in the custodial deaths of civilians.

The Commissioner looked at the actions of other public bodies as well. During the inquiry, the Commissioner had argued that he had the jurisdiction to inquire into the reasons the Criminal Justice Branch of the Ministry of Attorney General did not advance criminal charges against any of the involved police officers. The British Columbia Supreme Court held that the Commission could hear this evidence from the Crown. However, the Criminal Justice Branch appealed this decision and is currently on reserve with the BC Court of Appeal.

The BC Coroners Service was criticized for failing to inform the family of his death and for failing to keep an accurate and complete record of his death, citing it initially as a hit and run, rather than a death in police custody. Also, cognizant of Mr. Paul’s personal circumstances, Davies recommended the establishment of a civilian run alcoholic treatment program for chronic homeless alcoholics.

Posted by Mandy Cheema (Windsor Law III)

BC government introduces legislation to amend police complaints process

Last week, the British Columbia Legislature introduced Bill 6 -- Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, 2009. Solicitor-General John van Dongen stated that the legislation is intended to give effect to the recommendations of Justice Josiah Wood who prepared a 2007 report on the BC complaints process. Some of the changes include:

"— Making it mandatory for external police forces to investigate any in-custody death or serious injury.

— Empowering the complaints commissioner, not the police force facing allegations, to decide how to proceed with a complaint.

— Allowing the commissioner to track all investigations in real time.

— Compelling police officers to provide statements within five days of a request.

— Increasing the maximum-allowable suspension for misconduct to 30 days from five."

Posted by Professor Tanovich

Toronto lawyer calls for all police-civilian interactions to be videotaped

Peter Biro, a lawyer with Weir Foulds in Toronto who has represented many clients who have sued the police, has called for all police interactions with civilians to be videotaped.

RCMP report warns officers of threat posed by modern technology

It has just been made public that the BC RCMP has warned its officers that modern technology could prove to be a vice. In a report written approximately one month before the Dziekanski death, RCMP officers were warned that phone cameras and You Tube could make them especially vulnerable to public scrutiny of their actions. It further stated that recordings of police activities could lead to "increasingly more public exposure of RCMP member actions that some may perceive to be inappropriate." The BC RCMP has not commented on whether this report was the result of any RCMP-related incident.

Posted by Mandy Cheema (Windsor Law III)

A rare glimpse into one man's attempts to seek redress for racial profiling through the Ontario police complaints process

In his story "Riding while black, or looking for trouble?", Toronto Star reporter Jim Rankin chronicles the numerous incidents that Arden Ditten, a Black Toronto resident, has had with the Toronto Police Service over the past five years. It also reveals the flaws of a police complaints process that allows the police to investigate themselves particularly on issues that they often fail to properly understand such as racial profiling.

Posted by Professor Tanovich

Toronto Police Service to participate in study of racial profiling

In a precedent setting step, the Toronto Police Service have agreed to participate in an American study of policing to be conducted by the Consortium for Police Leadership in Equity by providing the research group with data on race.

What remains uncertain is what race data the police will share. The problem with arrest data is that it only shows who is arrested not who comes into contact with the police. Hopefully, it will be contact cards and use of force data that is released. It is this data that will reveal the scope of over-policing of racialized groups in Toronto.

To date, the only police service in Canada to officially collect race data on police stops is the Kingston Police Service despite repeated calls by academics and the Ontario Human Rights Commission. The KPS launched a one-year pilot project in 2003. The Kingston experience is summarized in an article by its former Chief, Bill Closs, and Paul McKenna -- "Profiling a Problem in Canadian Police Leadership: the Kingston Police Data Collection Project" (2008), 49 Canadian Public Administration 143.

This is another significant step take by the Toronto Police Service to address the problem of racial profiling. In 2007, the TPS and the Ontario Human Rights Commission signed a Charter Project document which "formalized a three-year collaborative approach to human rights and anti-racism perspectives in all policing activities." In July, 2008, the first Annual Status Report of the Charter was published.

Posted by Professor Tanovich

Braidwood Inquiry begins hearing testimony from the four RCMP Constables involved in the Robert Dziekanski taser death

As I write this post, the Braidwood Inquiry is hearing from RCMP Constable Gerry Rundel, one of the four RCMP officers involved in Robert Dziekanski's death. I am here on my law school reading week. This is a remarkable experience which has made it astonishingly clear to me the legislative reforms needed to ensure accountability from police officers.

On the possible role race played

On the first day of Rundel's testimony, Zofia Cisowski, could not bear to watch the video of her son’s final moments and ended up leaving and not returning. Constable Rundel described his initial response to the RCMP dispatch he received shortly before arriving at Vancouver International Airport. What is most troubling is the way the dispatcher described Mr. Dziekanski -- “a non-white male with dark hair wearing a white jacket.” What role did race play in the manner in which the RCMP responded? Was it routine to have four constables arrive separately in their police cruisers? Is it plausible to assume that the RCMP response was influenced, in part, by the moral panic that has gripped airports since 9/11 with its impact felt most prominently by those who loook Arab or Muslim? Constable Rundel did not testify as to whether the description by the dispatcher was communicated amongst the four RCMP officers before or when they converged at the airport.

Whether the description of “non-white male with dark hair” influenced their reaction remains to be seen. Although Commission Counsel raised this possibility, he did so subtly and did not make the link between what role, if any, race played that day at the airport. However, in raising that query, Commission Counsel introduced the possibility for that conclusion to be drawn.

On Constable Rundel’s justification

Perhaps what is even more astonishing is Constable Rundel’s justification for the taser. On numerous occasions, he repeatedly said that he feared for his safety. The cause of this fear? A stapler. It is difficult to believe that an RCMP officer (wearing a bullet-proof vest), trained and fully equipped with various tools, such as a baton, pepper spray, taser and firearm (not to mention the superb physical fitness of most police officers), would be afraid of a stapler- especially in the company of three equally equipped and trained RCMP officers. Surely, wearing a bullet-proof vest would ward off attacks by a stapler.

On the RCMP’s inconsistent position

Prior to Constable Rundel’s testimony, the RCMP maintained that Mr. Dziekanski made combative gestures holding the stapler before the taser was deployed. Constable Rundel further testified that Mr. Dziekanski was demonstrating “non-compliant” behaviour in raising his hands and not complying with RCMP orders. However, the video evidence does not show him raising his hands before the taser is deployed. The decision to taser was made within 4 seconds upon arriving and within thirty seconds, he was tasered five times. During this time, very little was done during the intervals to back off and give Mr. Dziekanski a chance to respond, nor was an effort made during this time to assess his medical situation. Moreover, Walter Kosteckyj’s questioning made it clear that Mr. Dziekanski had only raised his arms after being tasered- in all likelihood, as a natural response to the electric shock waves being sent through his body.

Constable Rundel admitted that Robert Dziekanski may have been frightened and felt trapped when the four RCMP officers surrounded him that day. Upon further questioning, he said there was no time to give Dziekanski a warning before the taser was deployed and admitted no attempt was made to find out where he was from or where he was going. However, he did not back down from maintaining that he and his colleagues acted properly.

On the language barrier

In response to Commission Counsel’s question as to whether the language barrier may have complicated communications, Constable Rundel did not acknowledge the possibility of a language barrier of a Polish immigrant coming to Canada for the very first time. For more on language barriers and law enforcement practices, see Vera Institute of Justice.

For up-to-date information visit the Braidwood Inquiry website.

Posted by Mandy Cheema (Windsor Law III)

Police associations call for all officers to be armed with tasers

The Canadian Police Association (CPA) and the Canadian Association of Chiefs of Police (CACP), the two largest police organizations in the country, have released a position document advocating greater use of tasers or conducted energy devices. According to CPA President, Charles Momy, tasers not only save lives but do not cause death. Tom Kaye, Vice-President of the CACP, stated that "we reiterate that to date, there is no evidence, either scientific or medical, that a conducted-energy weapon has been the direct cause of death anywhere, at any time, on any person." According to their position document, conducted energy devices should be restricted to situations of "active resistance" or where there are threats to officer and public safety.

The Globe and Mail responded with a scathing editorial "Dangerously Blank Slates." As it observes "...these words are merely a blank slate on which police may write almost any self-justification they wish. They give police a licence for the use of massive force, even where, as in [the Dziekanski case] it is unjustifiable."

On the issue of the dangers posed by tasers, we need a national debate informed by independent research free of any links to Taser International. While the CPA and CACP contend that studies reveal that tasers are safe, there are contrary studies. For example, a study conducted by Amnesty International found that tasers were a cause or contributing cause in the death of 67 individuals. See "Less than Lethal? The Use of Stun Guns in US Law Enforcement". See further, research by Dr. Andrew Dennis, of the Cook County Hospital Trauma Unit and a former police officer. Finally, there is a study by University of California cardiologists recently published in the American Journal of Cardiology entitled "Relation of Taser (Electrical Stun Gun) Deployment to Increase in In-Custody Sudden Deaths."

Posted by Mandy Cheema (Windsor Law III)

Almost 1/3 of police charges get withdrawn or dismissed

According to recently released data by Statistics Canada on our adult criminal justice system, approximately 30% of charges laid by the police in 2006-2007 were either withdrawn by the Crown or dismissed or stayed by the courts.

Why is this happening? What role does race play? If a disproportionate number of these cases involve racialized individuals, then it would provide additional evidence of the scope of racial profiling. There is already some evidence that this is the case. In their 2008 series, Crime and Punishment, the Toronto Star uncovered data that reveals that racialized individuals are 53 percent more likely than Whites to be not convicted. No conviction is defined as (i) an acquittal; (ii) a withdrawal or stay of charges; and, (iii) a finding of guilt with a discharge on sentencing. See Rankin and Powell, "Is Justice System Blind to Colour" Toronto Star (21 July 2008).

One remedy is to have Crown Attorneys screen arrests before charges are laid. This is the current practice in British Columbia, Quebec and New Brunswick. See the discussion in McGoey, "The 'Good' Criminal Law Barrister: A Crown Perspective" (2004). In New Brunswick, only 16% of the cases were withdrawn or stayed as compared to 40% in Ontario where there is no pre-charge screening. While Ontario and other provinces have mandatory post-charge screening, the concern is the delay in review and timing of withdrawal.

Posted by Professor Tanovich