Testilying to secure a conviction

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

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

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

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

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

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

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

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

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

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

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

 Posted by Pamela Santora (Windsor Law II)

Can police officers retire to avoid investigation by the SIU?

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

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

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

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

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

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

Posted by Pamela Santora (Windsor Law I)

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."