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.
Showing posts with label Stacy Bonds. Show all posts
Showing posts with label Stacy Bonds. Show all posts
Monday, December 13, 2010
Saturday, December 11, 2010
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
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
Friday, November 19, 2010
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
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
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