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

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 Police Service Strip Search Practice “Troubles” Court

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)

CBC's The Current examines strip searches

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.

What were the prosecutors thinking?

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

SCC Narrows the Scope of Right to Counsel

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)

Supreme Court of Canada upholds Charter damages for unconstitutional strip search of lawyer

In Vancouver (City) v. Ward, 2010 SCC 27, the Supreme Court of Canada addressed, for the first time, when damages are an appropriate section 24(1) remedy. Cameron Ward, a Vancouver lawyer, was mistakenly arrested following the police receipt of information that an individual intended to throw a pie at the Prime Minister. Following his arrest, Ward was strip searched. The Court, in affirming the decision of the lower courts, held that he was entitled to damages of $5,000 as the search violated section 8 of the Charter.

McLachlin C.J., writing for the Court, determined that the language of section 24(1) is broad enough to include constitutional damages for Charter breaches. The Supreme Court developed a four step test. First, the claimant must first demonstrate that a Charter right has been breached. The next step assesses whether damages will further an identified purpose including compensation, vindication of the right and deterrence. Compensation refers to the objective of restoring a claimant to the position he would have been in had the Charter breach not occurred. Vindication of a right is meant to underscore the severity of a constitutional breach, and the objective of deterrence is to prevent future breaches.

The third step gives the state an opportunity to rebut the award of damages by demonstrating that countervailing factors exist to defeat the functional objectives rendering damages “inappropriate or unjust”. One countervailing consideration is the availability of other remedies such as private law remedies and declarations. For instance, if a claimant received damages resulting from concurrent tort action, the state could argue that that remedy addressed the constitutional breach. Importantly, the Court held that a person seeking Charter damages need not have exhausted all other legal remedies available, as long as the claimant can demonstrate damages would satisfy one of the objectives mentioned. The last step is to determine the quantum of the damages. Damages must be fair to both the claimant, which takes into consideration a number of factors such as the seriousness of the Charter breach and the risk of diverting resources from public programs to settle private matters.

As for the application of the facts to the case, the Court determined that damages should be awarded. First, there was no issue that the applicant had his section 8 right to be free from unreasonable search violated by the strip search. Second, compensation was necessary because the applicant suffered a serious injury. The Court reiterated that strip searches are inherently humiliating and degrading. Moreover, Ward posed no threat to himself or others, and had the police been more sensitive to his Charter rights the search would have been deemed unnecessary. In addition, the serious violation warranted damages to further satisfy the objectives of vindication and prevent future abuses of these rights. With regards to the third step, the state did not provide countervailing factors to the awarding of damages.

Finally, in assessing the quantum of damages, the Chief Justice stated that the claimant, having been strip searched, suffered significant injury to his intangible interests. However, the search was brief and not “extremely” disrespectful since Mr. Ward was not forced to remove his underwear, he was not touched, and it did not appear as if he suffered any physical or psychological injury. With respect to vindication and deterrence, while the officers’ conduct was insensitive to Mr. Ward’s Charter rights, the strip search was neither malicious nor intentional and, therefore, substantial damages are not necessary. Therefore, damages in the amount of $5,000 was appropriate.

Do you think that the Court’s recognition of damages as a constitutional remedy will help deter and prevent abuse of Charter rights?

Posted by Kenny Leung (Windsor Law II)

Ontario Court of Appeal stays serious charges because police assaulted accused

In R. v. Tran (30 June 2010) (Ont. C.A.), the Ontario Court of Appeal, in a strongly worded decision, criticized the police for violently assaulting the accused, the province's Special Investigation Unit (SIU) for concluding that there were not reasonable grounds for charges and the Crown Attorney who allowed the officers to remain involved in the case and to sit next to the Crown during the trial. The Court upheld the trial judge's decision to stay the charges under section 24(1) of the Charter. Of particular significance is the Court's reliance on the absence of accountability evidenced by the failure of the SIU to act in concluding that a stay of proceedings was appropriate.

Justice Epstein, for the Court, held:

"[98] I refer to the Crown’s cavalier attitude toward the seriousness of the police misconduct and abuse to which Tran had been subjected demonstrated by Crown counsel’s decision to have Officer Vander Wier sit at the counsel table after the trial judge’s ruling on the voir dire. This decision suggested indifference to, if not approbation of, the police abuse and attempted cover-up. Matters were made even worse when the Crown allowed Officer Vander Wier to have a continuing involvement with witnesses after the trial judge made an order excluding him from the counsel table.

[99] The Crown’s conduct was evocative of an alignment with the police, notwithstanding the abuse. The Crown’s responsibility lies not in securing a conviction but in presenting the case for the prosecution while ensuring a fair trial for the accused: see Boucher v. The Queen, [1955] S.C.R. 16. Conduct suggesting that the Crown was condoning egregious police misconduct in violation of its duty of even-handedness would, in my view, cause a reasonable observer informed of the circumstances to question whether Tran could receive a fair trial. While the trial judge found that the police misconduct and Charter breaches did not affect the evidence, a reasonable person could well conclude that Vander Wier’s continued involvement with the case and his ongoing contact with key Crown witnesses could influence their testimony to Tran’s disadvantage.

[100] To make matters still worse, there is no evidence of any effective response to the police brutality here.

[101] The only action apparently taken against the police was the SIU investigation. It was closed on June 6, 2003. Defence counsel inquired into the reason for this, and was told that while the reason was confidential, the decision was justified. At the stay hearing, counsel for the SIU advised the court that the Director “closed the SIU file in the case having reached his conclusion that there were no reasonable grounds to believe that the officer had committed any criminal offence.” In oral argument, the panel was informed that despite the trial judge’s findings of serious police brutality, no further action has been taken against these officers. It is difficult to understand why or how those responsible for investigating the incident could continue to maintain that there are no reasonable grounds to proceed.

[102] The message of Nasogaluak at para. 32 bears repeating: “Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.” It is not for this court in this appeal to concern itself with punishment for those who abused Tran. It is, however, for this court to affirm the fundamental values of our society and to respond to actions that undermine the integrity of the justice system. The failure of the SIU and other authorities to follow through with a meaningful investigation also militates in favour of a stay."

Testifing in lying colours: Officers successfully convince judge that detention and search the product of racial profiling

In R. v. Ahmed, Justice Kiteley of the Ontario Superior Court of Justice threw out evidence obtained by the police because she was satisfied that race played a role in their decision to stop and search the accused, a 26 year-old Black male.

Ahmed was driving in his vehicle during daylight hours guiding the car behind him driven by his cousin’s girlfriend. She was not familiar with Toronto and needed Ahmed’s help in getting her to where her boyfriend was waiting for her to pick him up. Ahmed and the other car were waiting to turn left at an intersection. The light was red. While they were waiting, a police vehicle pulled up alongside Ahmed and looked at him. When the light turned green, Ahmed proceeded into the intersection waiting for traffic to pass. The police vehicle "did not proceed on the green but slowly inched forward. When Ahmed’s vehicle began making the left turn, the police vehicle cut off" the vehicle being driven by his cousin's girlfriend "made a left turn and pulled in behind Mr. Ahmed’s vehicle” (para 5). What ensued was a warrantless search of Ahmed and his vehicle. A small amount of marijuana and a bag of cocaine was discovered.

In her analysis of Ahmed’s Charter application under s. 24(2) of the Charter, Kiteley J. cited the 1995 Report of the Commission on System Racism in the Ontario Criminal Justice System, which included a finding “that the phenomenon of racial profiling by the police existed” (para 57). She also cited R. v. Brown [2003] O.J. No. 1251, which stated that “racial profiling will rarely be proven by direct evidence.” (para 58) Instead, “if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.” (para 58)

Ahmed testified that “over the years that he had been driving, he had been pulled over by police over 25 times” (para 8).

In addition to this social context evidence, the trial judge did not accept the evidence of the two officers in this case as either credible or reliable. Their evidence was in direct conflict with both Ahmed’s and his cousin's girlfriend's evidence. The officers' evidence was also in direct conflict with two civilian witnesses from the Toronto Police Service. Their evidence confirmed that the officers had lied when they testified that they got three computer hits about Ahmed in their vehicle. Such hits could only have been obtained from the police station given the technology at that time. As well, one of the officers had violated the judge's non-communication order when he spoke to his partner about the case after he had finished testifying.

As a result, Justice Kiteley said that the reasons for rejecting the officers’ evidence was “so compelling” (para 41). In her view, the circumstantial evidence in this case, when weighed on a balance of probabilities, compelled her “to draw the inference that Mr. Ahmed was investigated and arbitrarily detained because of his race.” (para 60)

Both the marijuana found on Ahmed and the cocaine found in his vehicle were excluded under s. 24(2) of the Charter as Kiteley J. found that Ahmed’s ss. 8, 9, 10(a) and 10(b) Charter rights were violated by the police.

This case sends a sharp message to the law enforcement community that Courts are alert to the existence of racial profiling by police and are just as alert in dealing with it.

Posted by Agnes Tong (Law II)

UofT Centre for Constitutional Rights concludes that jury vetting violates privacy of jurors

In June, the well-publicized scandal of jury vetting in several jurisdictions across Ontario was exposed. In short, several police forces had been providing information to Crown Attorneys about potential jurors, and the Crowns had not been in turn disclosing that information to defence counsel. The background checks being conducted on the jurors stepped over significant legal and ethical boundaries, investigating areas such as involvement with the mental health system and minor charges against jurors that had, often long before jury selection, been dropped.

After the exposure of the practice, Ontario’s Information and Privacy Commissioner launched an investigation, the results of which are yet to be seen.

However, the David Asper Centre for Constitutional Rights at the University of Toronto has since been asked to provide an opinion on the legality of the alleged background checks. As a result, the Centre has provided submissions regarding how the background checks impact the Charter rights of jurors and the accused, as well as submissions regarding the potential systemic significance of checks.

With respect to Charter rights, the Centre says that “the state conduct in these cases constituted an unreasonable search and therefore violated the s. 8 rights of potential jurors.” Further, the Centre reminds us that it is established law that any information obtained by the Crown regarding prospective jurors must always be disclosed to the defence. In terms of the systemic implications, the Centre points out the access to justice implications that arise from the checks. Specifically, potential jurors may not even know that their Charter rights have been breached. Without knowing, they cannot seek redress. Perhaps even more significant is that even if they did know, they would have no standing, and therefore no access to Charter breach remedies. A further systemic problem noted by the Centre is how the alleged background checks could further stigmatize jury duty. Accepting that the avoidance of jury duty is already well-documented, the Centre notes that prospective background checks will likely lead to further avoidance of jury duty, inevitably resulting in unrepresentative juries.

The Centre concludes, as LEAP did when it reported the story in June, that a full public inquiry is required. This is not an issue that can be swept under the rug. Its lasting effects may, as yet, be unknown – but it is potentially catastrophic to the outcome of past cases decided by vetted jurors. The accountability of police officers and Crown Attorneys who may have engaged in the process is at stake. However, as the Center points out, it is just as important to focus on the victims as it is to focus on the perpetrators. Jurors have potentially had their Charter rights violated, and an investigation into their personal situations is required.

Posted by Ashley Paterson (Law II)

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)

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

Using exclusionary rule to secure police compliance with Constitution debated

The Supreme Court of Canada will soon be releasing two important judgments on the scope of Canada's exclusionary rule. One case involves a gun (R. v. Grant), the other a large quantity of cocaine (R. v. Harrison). Some of the issues that the Court will have to struggle with are referred to by Frank Addario, President of the Ontario Criminal Lawyers Association and Justice Michael Moldaver of the Ontario Court of Appeal in their panel discussion summarized in the link above.

One of the problems in exclusionary discourse is the failure to factor in the disproportionate number of Aboriginal and racialized individuals who are subjected to unconstitutional police conduct on a daily basis. Exclusion serves as an important protection against racial profiling. The studies reveal that racialized individuals have less trust in the police complaints process and justice system than Whites and so other means of securing police compliance such as civil suits and police complaints are not likely going to materialize.

In the United States, the Supreme Court has also begun to narrow its exclusionary rule. The American context is different, however, because there is very little balancing that goes on once a breach has been found. In Canada, admission is the presumed position not exclusion. The mood of the U.S. Supreme Court is captured in an article in a recent New York Times. Click here to read it.

Posted by Professor Tanovich

BCCA upholds damages for strip search of BC lawyer

On August 1, 2002, Vancouver police thought that Cameron Ward, a noted civil rights lawyer in British Columbia, matched the description of an individual they had been warned might try and throw a pie at Prime Minister Chretien during his speech at an outdoor dedication ceremony in Vancouver's Chinatown. Ward was arrested and detained for four hours and strip searched. The trial judge concluded that his arrest for breach of the peace was lawful because he had been protesting his detention and drawing attention to himself. However, the trial judge further held that his continued detention was unlawful and that the strip search by corrections officers employed by the City of Vancouver violated section 8 of the Charter. He awarded $5,000 in damages for the tort of unlawful imprisonment and $5,000 for the section 8 Charter violation. The Court of Appeal did not interfere with these findings or damages.

The decision is significant because a majority of the Court of Appeal rejected the City of Vancouver's argument that there should be no award of damages in civil cases where the Charter violation by government actors occurred absent a concurrent tort, abuse of power, negligence or wilful blindness.

Click here for the decision.

Posted by Professor Tanovich