Ottawa Police Association Considering Equipping Officers with Cameras

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

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

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

Posted by Jeremy Tatum (Windsor Law III) 

Crown Withdraws Charges After Court Raises Concerns About Racial Profiling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted by Jeremy Tatum (Windsor Law III)

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

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

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

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

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

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

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

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

Posted by Jeremy Tatum (Windsor Law II)

The Crown should align with justice, not the police

By David Tanovich, The Ottawa Citizen December 11, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

© Copyright (c) The Ottawa Citizen

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)