Ottawa Police Officer charged with sexual assault of Stacy Bonds

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

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

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

The Tort Action and the Law

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

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

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

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

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

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

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

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

The Facts       

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

           

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

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

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

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

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

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

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

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

·         the investigation was hasty and superficial; and,

·         the SIU departed from standard investigative procedures.

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

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

           

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

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

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

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

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

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

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

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

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

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

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

Questions to Ponder

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

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

Posted by Vlatko Karadzic (Windsor Law III)

Can police officers retire to avoid investigation by the SIU?

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)

What is really the point of the SIU?

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

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

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

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

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

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

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

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

Posted by Melissa Crowley (Windsor Law I)

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)