Month: July 2017

by André Marin André Marin No Comments

Cops ignore the importance of the SIU

Both Durham Regional Police and Toronto Police continue to serve as evidence of why the Special Investigations Unit’s mandate needs more teeth. Both police services are supposed to be modern and sophisticated crime fighting machines. Yet, when it comes to the SIU, they are dumb, deaf and blind.

19-year-old Dafonte Miller, who is black, will lose an eye after an altercation with a Toronto cop, Const. Michael Theriault, last December 28, 2016. He was off-duty, but identified himself as a cop.

Miller was punched, and kicked in the face with a metal pipe. Durham cops attended to the scene and even if Miller suffered from multiple broken bones, the SIU was left in the dark. Durham police promptly charged Miller with a slew of criminal charges and predictably let Theriault walk free.

The SIU was notified four months after the incident by Miller’s lawyer, to boot.

All charges against Miller were withdrawn by the Crown. Theriault and his brother are now the ones facing multiple charges laid by the SIU, including aggravated assault and public mischief.

The conduct of both DRPS and Toronto police has been deplorable since the incident. Neither accept any responsibility for not notifying the SIU “immediately” once they became aware of the incident. Of course, DRPS being the first to become aware of the matter had that legal duty to report it to the SIU. Instead, they notified their buddies at the Toronto police.

Toronto police should have stepped up and did DRPS’s dirty deed by calling up the SIU. But the thin blue line being the thin blue line, they did squat.

Both police services should have owned up to their mistake. But no. In typical “the cover-up is worse than the crime,” or the alleged crime, they both accepted no responsibility.

And so, the zizany ensues.

They have mounted a two-prong defence to accusations they were ducking the SIU. First, they are pretending this involved a complex legal enigma. DRPS says it was Toronto police’s job to call SIU. Toronto police claims this case was thoroughly analysed by cops specializing in the SIU and it was found to be out of its mandate.

Of course, all of this is bogus and a moot point. The SIU ended up investigating the case and laying charges. Why are the police quarrelling about the obvious? The SIU wouldn’t have involved itself if it was outside their mandate.

Second, both the DRPS and Toronto police chiefs have ordered investigations to get to the bottom of all this. DRPS will do it internally and Toronto got Waterloo Regional Police Service to investigate. But neither Toronto police chief Saunders nor DRPS chief Paul Martin has the gonads to pledge making investigation findings public, which is very telling. They undoubtedly fear they may not be favourable ones, despite the fact police-investigating-police is almost always in favour of the police.

Both investigations are smoke and mirrors meant to assuage a public tired of being played when it comes to the SIU. Basically, a public relations exercise.

Toronto Mayor John Tory made himself sound very upset about the whole thing wowing to get the bottom of this fiasco for the sake of accountability. I have no faith in police investigating police and don’t expect either WRPS or DRPS investigations to have any impartial or meaningful findings. But if sincere, Tory, as a member of the police services board, should at least commit to publishing WRPS’s report and use his influence in the GTA to convince DRPS to make their internal investigation public.

We’d at least have something to go on instead of this ongoing dog and pony show.

by André Marin André Marin No Comments

Cops dodge responsibility

Most people in Ontario know that if police intervention leads to serious injury or death, the Special Investigations Unit must be notified – and notified “immediately.” It’s been the law in Ontario for almost 30 years, yet the police in our province will do anything to avoid oversight by the SIU. Absolutely anything. They will twist, turn and stretch the police statute and regulations that create obligations towards the SIU to keep the matter in-house. The cops, from Chiefs of police to Union types, make nonsense of ordinary words with clear meaning as if they were dealing with elastics. All for the self-serving practice of avoiding police accountability.

This last week’s example is just another case of cops playing this game and jeopardizing the search for the truth.

A 19-year-old Dafonte Miller, who is black, may lose an eye in an altercation with a Toronto cop, Const. Michael Theriault, last December 28, 2016. He was off duty, but identified himself as a cop. We’re not sure of what happened but the bottom line, according to his lawyer, is that the cop gave chase and Miller didn’t stop.

Ultimately, Miller was punched, and kicked in the face with a metal pipe, according to his lawyer, and suffered serious injuries. Durham cops attended to the scene and even if Miller suffered from a broken nose, broken orbital bone and the list goes on, the SIU was left in the dark. Durham police promptly charged Miller with a slew of criminal charges and predictably let Theriault walk free.

It wasn’t until April 2017 that the SIU was notified of the incident by the family’s lawyer. Why didn’t Durham Police not notify the SIU immediately upon discovering it was dealing with a Toronto police officer who had caused serious injury?

It appears Durham police took the liberty of re-writing the law that governs such cases. According to the creative minds of this GTA police service, “it is the responsibility of the police service that employs the (involved) officer to contact the SIU.” Oh really? How does that make any sense? Durham was first at the scene and couldn’t resist handing off the case. It showed favouritism toward the Toronto cop by charging the bloodied civilian. This is precisely the reason the SIU exists – to conduct independent, unbiased criminal investigations. The urge to keep control of the case outweighed their duty to follow the law.

While pretending the SIU didn’t exist, Durham apparently notified Toronto Police on December 28, 2016. Mark Pugash, Toronto police’s own version of the bombastic ex-White House spokesperson Sean Spicer wouldn’t even confirm that early last week. He said he “can’t comment on someone else’s investigation. This is the SIU’s investigation.” A not-so-clever play on words by Pugash. The media were asking him to confirm whether Toronto Police had notified the SIU. They weren’t asking for information on SIU’s investigation. Later, Toronto Police spokesperson Meaghan Gray, attempting to give credibility to the fact it had not broken the law by not calling the SIU insisted “an experienced (Toronto Police) SIU Liasion Officer” was notified of the incident but didn’t notify the SIU. Experienced exactly in what ways? Dodging oversight, perhaps.

by André Marin André Marin No Comments

Bill C-52 not revenge for Ghomeshi acquittals

« Catastrophic attack” on the defence’s right to make full answer and defence,” “a barrier to justice,” “scandalous” attack on our criminal law. Some hysterical defence lawyers have had the ear of Postmedia columnists Christie Blatchford and Barbara Kay who have been channeling their supposed worst nightmares about Bill C-51 which finished second reading in Parliament and is now headed to the Standing Committee on Justice and Human Rights.

And it’s all the fault of these “radical feminists” who are on a mission to convict the innocent. Blatchford even writes that the Bill has had “scant attention, probably because it touches upon the accepted and sacred wisdom that women just can’t get a break in the criminal courts.”

I beg to differ. It’s received scant attention because it’s merely the case of legislation being updated with the times, particularly technology to modernize the already validated but dated rape shield law. That law deals with the twin myths. First, past sexual experience can’t be used to show it made complainants more likely to consent to sex. Second, that their past sexual activity makes them more less worthy of belief.

When the rape shield law was introduced, defence lawyers were also howling about how shocked they were at this new law. Heresy!

The Supreme Court of Canada upheld the constitutionality that law in a case called Darrach in 2000. I was the assistant Crown Attorney who prosecuted the case in the early 1990s which took over a year to conduct due to a slew of schmaltzy and baseless defence motions.

The law then was that if the accused wanted to adduce evidence of past sexual experience to show the complainant was more likely to consent, or that their past sexual activity made her less worthy of belief, the accused had to enter into a process where the judge would rule weighing the evidence to determine, among a variety of criteria, whether it had a significant probative value “not substantially outweighed by the danger of prejudice to the administration of justice.”

Darrach got convicted. He lost his first appeal. Then he headed to the SCC where the defence continued to scream bloody murder. The integrity of the criminal justice is at stake! The accused’s right to make full answer and defence, his right to a fair trial and the presumption of innocence have been tossed out the door, not to mention that he’s forced to incriminate himself!

The SCC would have none of it. The court rightfully found that the “twin myths” are “simply not relevant at trial” and can “distort the trial process.” The process for screening the evidence “enhances the fairness of the hearing by excluding misleading evidence.”

Text messages, emails and video recordings were in their infancy, if they even existed, in 1992-1993, so they weren’t included in the language of the Criminal Code. Now they would be. Everything else stays the same. Both Blatchford and Kay both claim Bill C-51 is the revenge for the Jian Ghomeshi acquittals. Of course, that makes it sexier to write about.

But no. It’s actually simply a bit of spring cleaning and making sure the Criminal Code is with the times. If the Bill becomes law, expect the same legal challenges as in Darrach. Also expect the SCC to uphold it. Now back to what you were doing.

by André Marin André Marin No Comments

SIU misses the mark

Thursday we had the gift of a timely Special Investigations Unit annual report which, bonus, had some meat in it, even though some was hard to swallow.

For the last few years, the SIU’s reports came in many months late. In typical bureaucratic speak, both the SIU and its mother ministry, the Ministry of the Attorney General both pointed to the lack of legal requirement to even deliver an annual report. Where is the common sense in that? Must every good practice be legislated?

In investigating the SIU in my prior position as Ombudsman of Ontario, I found that the SIU had had its report, on at least one occasion, nixed or shelved by MAG because they were too explosive, i.e. too likely to rattle cops’ thin skin. In another SIU report, the unit attempted to duck controversy by cleverly distracting us away from the work the unit actually did.

For example, the SIU’s 2006-2007 annual report could have easily been mistaken for a glossy brochure for the Mountain Equipment Coop. Although it was ominously titled “One Law”, the message from dreary-looking, bow-tied former director James Cornish is juxtaposed by shining light through lush green woods.

On page 3, we see a bunch of happy kids white water rafting. What exactly does that have to do with investigating the police when serious injury or death occurs? Next we’re shown a picture of a woman rock-climbing with a serious look on her face.

Finally, Part 3 of the SIU annual report titled “Looking Forward” has someone in a Rocky-like pose with his victorious arms with clenched fists in the air. Hey, you’re located in Mississauga, not Philadelphia.

This particularly weird report made light of the seriousness of the SIU’s job. Investigating the police when they’ve caused serious injury or killed a civilian shouldn’t look like a fun outdoor adventure.

Ten years later, the SIU’s report is thankfully more serious and substantive. But a caveat about SIU reform in the Director’s Message shows that the SIU still has a propensity to shoot itself in the foot. SIU Director Tony Laparco appears to laud proposed reforms which would make individual case reports public when no charges are laid, but quickly points out that “significant issues are likely to arise if law enforcement agencies such as the SIU release information that has historically been implicitly confidential as per common law practice.”

Loparco talks of scary things like the impact on “criminal proceedings, other court processes, civil litigation, a coroner’s inquest or parallel investigations.” He then warns about the impact of potential witnesses who may think twice about coming forward if they think they’ll see their name in a public report.

All of this, of course, is hogwash. If no charge is laid by the SIU, it won’t affect its court proceedings as the report won’t be public. Currently SIU files are not protected from civil discoveries, nor are SIU staff immune from being subpoenaed or sued, so why be concerned about releasing a report? If the police have a parallel investigation that reaches different conclusions, it will justifiably raise red flags. Too bad. And there is no need to name witnesses. The report could easily be anonymized.

The SIU missed an opportunity to fully embrace reform. Instead, it preferred to raise bogeymen scenarios that do little but reinforce the notions it likes, the secretive status quo.