OFF THE WIRE
copblock.org
Originally posted at TheStar.com and written by David Bruser and Jesse McLean
It is so unjust for the victims of police misconduct to see bad officers receive awards and praise for good work. The justice system agrees and encourages police misconduct by the simple fact the justice system refuses to act and punish bad officers. The justice system is a failure and victims of police brutality and misconduct are added to the list each day.
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Originally posted at TheStar.com and written by David Bruser and Jesse McLeanThe Canadian Association of Chiefs of Police says the justice system should report police officers who are found by judges to have lied, misled the court or fabricated evidence.
“If a judge perceives that an officer has not fulfilled his oath of honesty, a judge should report it to a police service. The national association would naturally support mechanisms that would ensure this happens,” said association spokesperson Timothy Smith.
The comments come after a coast-to-coast Toronto Star investigation that found more than 120 police officers have been accused by judges of courtroom deception since 2005. Many of the officers have gone unpunished.
The national chiefs spokesperson said the Star’s series caught the attention of the entire law enforcement community and “the public we serve.”
The issue raised by the Star “runs absolutely counter to why we in policing choose to make a career out of this profession.
While we do not feel that this issue is at all prevalent, we recognize that even a single instance can damage the reputation of policing overall.”
Meanwhile, the Ontario Association of Chiefs of Police, headed by Waterloo Region Chief Matt Torigian, said if the provincial government in Ontario was to consider requiring prosecutors report such conduct to police forces, the Association would participate in those discussions.
There is so little oversight of the problem that in some jurisdictions police forces did not know judges found that their officers misled the court. Internal investigations into four cases — three in Peel, one in York — were started after the Star brought the courtroom misconduct findings by a judge to the department’s attention.
British Columbia seems to be the only province with a formal reporting system in place. If a judge criticizes the truthfulness of a police witness’ evidence or testimony, the prosecutor should report it to a senior crown attorney. The prosecutor should also recommend to the police force that it investigate alleged misconduct.
The chair of the civilian oversight Toronto Police Services Board, Alok Mukherjee, told the Star he is troubled by this “serious issue” and wants something done to stop the lies from eroding the public’s trust in his police force.
There must be a formal mechanism through which the prosecutor’s office notifies the force and the police board whenever negative findings are made about an officer’s credibility, Mukherjee said.
Elaine Flis, a spokesperson for Ontario’s Attorney General John Gerretsen, says there is no plan to make it a formal policy. But Flis said “where a judge raises perjury in relation to a witness, the trial Crown will refer the matter to his or her superiors.” Flis said it is important that when prosecutors hear something they suspect to be perjury they pass it on to the police force for investigation.
Toronto defence lawyer Reid Rusonik, as well as other sources in the justice system and many Star readers, say it is an easy, sensible fix.
“The Star’s investigation has only uncovered the tip of the iceberg of the problem. . . . It shouldn’t fall on (news) reporters to sit in every courtroom every day and then make complaints when they hear a judge make an oral finding of dishonest police testimony,” said Rusonik, who in the last few years has exposed police fabrications in more than a dozen cases across the GTA, six leading to the acquittal of clients charged with possession of a handgun.
“It must be incumbent on the Crowns to report every such finding to an independent investigator. The Crowns know full well how to get perjury prosecuted. You wouldn’t believe how quickly some of them will charge a civilian witness caught lying.”
Meanwhile, at the Toronto Police Service, where spokesman Mark Pugash has been dismissive of the Star series and has said the articles ‘cannot be taken seriously,” a force member wrote on Twitter yesterday: “Thank-you for such an indepth and well balanced, two sided series. looking forward to the rest.”
The Star called Toronto Police and learned the tweet was sarcastic.
Police Who Lie, Part 2: False Testimony in Canada
Just as in USA and other “so called” democratic countries, Canadian police have been unaccountable to no one. In some provinces, there are faulty mechanisms to arbitrate and investigate complaints of police misconducts, but the cards are usually stacked against the complainant as police investigating police only to end up absolving the accused officer, does not give any credibility to the process. Police officers who are found to be guilty of police misconduct hardly ever get punished or get just a laughable 2 day suspension.
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Originally posted at TheStar.com and written by David Bruser and Jesse McLean
The first time Toronto police Det. Scott Aikman deceived the court, a judge denounced his “misleading” testimony and threw out a cocaine charge against a man.
The second time, Det. Aikman’s story explaining why he and his partner searched a minivan led to the acquittal of four suspects accused of masterminding an international credit-card data-theft ring.
Aikman “either fabricated or concealed evidence” to justify the van search, the judge said. The four suspects, charged with a total of 321 offences, walked free.
Was Aikman disciplined for his conduct in court?
“No. Of course not,” said Aikman, explaining to the Star that he had done nothing wrong.
A coast-to-coast Toronto Star Investigation found more than 120 police officers
have been accused by judges of outright lying, misleading the court or fabricating evidence since 2005. Many of the officers have gone unpunished.
There is so little oversight of the problem that in some jurisdictions police forces did not know judges found that their officers misled the court.
Internal investigations into four cases — three in Peel, one in York — were started after the Star brought the courtroom misconduct to the departments’ attention.
Compounding the lack of oversight is a lack of accountability to the public.
Big-city forces, including Montreal and Calgary, refused to say whether their officers were disciplined.
At the Toronto Police Service, where at least 34 officers have come under fire from judges for being untruthful in court in recent years, there is little indication Chief Bill Blair considers the judges’ findings a call for change.
The chair of the civilian oversight Toronto Police Services Board, Alok Mukherjee,
told the Star he is troubled by this “serious issue” and wants something done to stop the lies from eroding the public’s trust in his police force.
If we say a police officer takes an oath of office to uphold the law, if we require that they must be of good moral character and integrity …then someone who is found to have lied or falsified their notes, can they be said to be upholding their oath? Can they be said to have demonstrated integrity?” he said. “My simple, non-legal mind says: That’s misconduct.The Star sent letters to police forces across the country asking how they responded to the judicial findings questioning their officers’ credibility.
The reactions ranged from receptive to unaware to dismissive.
In Edmonton, where judges found at least nine officers have been misleading or not credible, one was found guilty of three counts of insubordination, while two more are awaiting disciplinary hearings. Two others are being investigated.
Chief Rod Knecht said the force has a range of disciplinary measures for officers found to have been deceitful, from re-training and fines to termination.
“The credibility of a police officer is sacrosanct. Our entire profession is based on the principle that police officers will act and be held to a higher level of
accountability,” Knecht told the Star. “Every instance of deceitful behaviour damages the collective reputation of police everywhere. Once damaged, that reputation is hard to restore.”
In contrast, in two cases where judges found Ontario Provincial Police officers’ testimony and evidence was misleading, none of the officers were formally
disciplined. (The force would not say whether a third officer, a civilian court constable, was disciplined.)
While OPP Commissioner Chris Lewis said the force “takes any allegation of wrongdoing against its members seriously and will investigate,” he questioned
whether a judge’s “opinion” is “correct or proven.”
Lewis said criticism of the “quality and truthfulness of officer testimony is rare.” Where the force finds such cases, the officers could face additional training or supervision, or disciplinary action.
At the Toronto Police force, Chief Bill Blair would not be interviewed. His spokesman, Mark Pugash, accused Star reporters of bias and said “your story cannot be taken seriously.”
“A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt,” Pugash said. “The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence.
“You either don’t understand, or you don’t want your readers to understand, the fundamental distinction between a judge’s comments and a judge’s rulings.”
Toronto defence lawyer Reid Rusonik disagrees.
“How can there be any accountability or a proper disciplinary process in place if they don’t even allow for the possibility that officers lie? It’s surreal,” said Rusonik, who in the last few years has exposed police fabrications in more than a dozen cases across the GTA, six leading to the acquittal of clients charged with possession of a handgun.
Mukherjee, Toronto’s police board chair, said judges should not be ignored.
The chair has raised the issue with Toronto Police brass, he told the Star, but has been met with a defensive rationale that while police are catching bad guys, judges are letting them go on legal technicalities.
British Columbia seems to be the only province with a formal reporting system in place. If a judge criticizes the truthfulness of a witness’ evidence or testimony, the prosecutor should report it to a senior Crown attorney. The prosecutor should also recommend to the police force that it investigate alleged misconduct.
In Ontario, no one tracks instances where an officer’s credibility has been brought into question. Ontario’s Ministry of the Attorney General says it is a police force’s job to investigate lying officers.
That is assuming someone tells the police. Officers who testify often leave court and are not present when a ruling criticizing their credibility is made. Pugash said the Toronto force has completed 12 investigations into alleged courtroom misconduct since 2010 and found no evidence of wrongdoing with respect to false testimony.
He said the force only learned of the majority of these cases from media accounts of trials. He said defence lawyers and prosecutors have a responsibility to alert police to allegations of officers lying in court.
Yet there is no requirement for a Crown to report dishonest testimony. It is the
discretion of a prosecutor to contact the deceitful officer’s superiors. Some do,
some don’t.
The consequence: Police misconduct is going unpunished.
Apparently no one from Peel Police knew when Justice Steven Clark found two of the force’s officers were “misleading” when explaining why they illegally entered a suspect’s apartment.
“Few actions more directly undermine both goals of the integrity of the judicial system and the truth-seeking function of the Court than misleading testimony from persons in authority,” the judge said.
Seventeen months after the ruling, when questions from the Star brought Justice Clark’s ruling to the force’s attention, Peel Police began investigating.
The British Columbia reporting policy and the case of RCMP blood-spatter analyst Ross Spenard shows how an allegation of a police lie can be properly, and relatively quickly, dealt with.
Spenard was testifying in the 2009 trial of a First Nations woman who stabbed her toddler to death. During the cross-examination, Spenard was exposed for misleading the court, including testifying that another officer had written a flawed forensic report when in fact he was the author.
“Staff Sgt. Spenard is the perfect example of a person who clearly lied under oath, and violated his oath to tell the truth, and he even agreed to this,” Justice John Truscott told the jury. “That conclusion is so clear and convincing, and so serious, that I suggest you should consider his evidence to be completely tainted, and without any value whatsoever.”
Four months after the judge’s comments, the prosecutor’s office formally complained and asked Vancouver Police to investigate Spenard’s conduct on the stand.
He was charged and later pleaded guilty to perjury. He received a nine-month conditional sentence.
He is retired from the RCMP.
Mark Berry, a former prosecutor whose 2006 case against a 649-marijuana plant grow-op in Surrey, B.C., fell apart after a witness, an RCMP police officer, misled the court, said police forces should pay attention when judges make negative findings on officer credibility.
Otherwise, said Berry, now a defence lawyer, the police departments risk “dooming themselves to repeat the same mistakes in the future.”
Toronto cop Scott Aikman, who has several commendations from his force, did exactly that.
In the fraudulent credit card case, he and another officer stopped a van after it allegedly ran a stop sign.
The traffic stop turned into a search under the Liquor License Act after Aikman allegedly detected evidence of alcohol in the van. The search turned up a white plastic bag full of fraudulent credit cards.
The judge did not accept Aikman’s evidence that there was allegedly alcohol in the van, and said that his “claims were after-the-fact efforts to justify a vehicle search” that he should not have made.
The lynchpin of Aikman’s evidence was a Gatorade bottle that one of the passengers allegedly admitted contained vodka. The bottle was empty when it was finally submitted into evidence.
Aikman testified that it must have spilled while he was searching the van.
It also was not bagged as evidence right away, nor was the bottle tested until a year after the bust, and only after repeated requests by a defence lawyer.
At the time of the test, the alleged liquid residue was no longer testable.
The bottle’s “contents suspiciously and too conveniently disappeared,” Justice Miriam Bloomenfeld said, adding Aikman “either fabricated or concealed evidence in order to justify the search after the fact.”
Aikman’s “disregard for the accused’s Charter rights demonstrates how the actions of one state actor can denigrate the integrity of a prosecution,” Bloomenfeld added.
“It is precisely the type of state conduct from which the court must dissociate itself if the administration of justice is not to be brought into disrepute.”
The decision is being appealed.
When asked about the two cases where judges found he misled the court, Aikman told the Star he was not allowed to talk to the media.
Though he did not discuss either case in detail, he said, “It’s very unfair that one side is being reported,” referring to the judge’s comments on his testimony.
Aikman also said his force would have investigated his conduct had he done anything wrong.
“The fact that there can be multiple findings about an officer reinforces the need for a formal oversight process,” said lawyer Graham Zoppi, who represented one of the accused in the data theft case.
Toronto Police Board Chair Mukherjee has a proposed fix:
There must be a formal mechanism through which the prosecutor’s office notifies the force and the police board whenever negative findings are made about an officer’s credibility.
Ontario’s Police Services Act, which Mukherjee has said is “silent” on this issue, should spell out whether a judge’s finding that a police witness lied constitutes professional misconduct.
Police chiefs, who oversee internal discipline under the Police Act, “need to think about their responsibility” in responding to judges’ concerns.
While officer discipline is controlled by the chief, as spelled out in the provincial Police Act, Mukherjee is seeking legal advice on whether there is a punishment the police board, on its own, can levy to deter lying under oath: Blocking promotions of officers caught doing it.
Frustration with police dishonesty bubbled over in a Niagara Region courtroom last August, when a judge made a controversial ruling in an attempt to get police brass to act.
The case stemmed from one of the largest grow-op busts in Ontario’s history.
In May 2008, Niagara officers raided a series of buildings, including a greenhouse and former church.
They seized thousands of plants and arrested eight people in what was described as
the takedown of a $16-million operation.
The original tip came from a Hamilton detective, who had noticed a suspicious home in the town of Lincoln while visiting family over Christmas.
But the Niagara detective, James Malloy, and other officers tried to hide the source of their information and “made inaccurate and misleading notes” by claiming the information came from an anonymous source, Justice Peter Hambly said in his ruling.
“Malloy lied under oath and stated that he would have continued to lie under oath in court if he had not been caught,” the judge said.
The officers did not follow their obligation to share all the information they found in their investigation to the prosecutor, the judge said.
Instead, they censored and redacted the information on their own.
Once aware of the officers’ cover-up, Niagara’s senior officers were indifferent to the misconduct, Hambly said.
“Senior officers have taken no action. The chief of police (Wendy Southall), who
now knows what has taken place, has taken no action,” he said.
“It seems highly likely that what has happened here will continue to happen unless the court refuses to hear the case.”
Hambly, frustrated with the police force’s apathy, stayed charges against two of the accused, saying the decision was worth the “price” to maintain the integrity of the justice system.
The day after, Niagara Regional Police Service requested an outside police force probe the officers’ conduct.
The London Police Service’s investigation has been suspended, though, as the prosecutor appeals Hambly’s decision.
The force did not say whether the officers have been disciplined.
Police Who Lie, Part 3: How Officers Thwart Justice
Posted on May 06, 2012.
A Canadian Newspaper “Toronto Star” did a series of articles on Police officers who lie in court and thwart the justice system and undermines their own credibility with the public and judges.
This is Part 3. Read Part 1 & Part 2.
Their false testimony conceals illegal techniques, excessive force and racial profiling. But accused criminals are walking free as Canadian judges clamp down.
Visibly nervous, papers shaking in their hands, Toronto police officers Jay Shin and Joseph Tremblay testified under oath that they stopped Delroy Mattison’s Chrysler Intrepid on the afternoon of July 18, 2011, because they saw him using a cellphone.
The officers were lying, just not very well.
In Mattison’s trunk that summer day were a stainless steel .357 Smith & Wesson revolver and 31 bullets. Mattison, who had a previous conviction for armed robbery, was on his way to a drug deal.
Under the law, these officers needed a reason to stop and detain Mattison. Without one, they would never have found the gun.
The problem is they never seized a cellphone or noted the existence of one in paperwork filled out at the scene. That night, a third officer snapped photos of the impounded Chrysler’s interior, none showing a phone.
“Officers Shin and Tremblay were untruthful about seeing Mr. Mattison using a cellphone,” Justice Nancy Backhouse ruled. She tossed the evidence, saying, “This court must dissociate itself from (this) serious and deliberate state misconduct.” Mattison walked free.
Backhouse was trying to send a message, one being repeated by concerned judges in courtrooms across the country: Police dishonesty makes a mockery of the courts, undermines the public’s trust in the justice system and must be condemned. There is little evidence anyone is listening.
A nationwide Toronto Star investigation shows judges are frequently finding that police officers lie under oath.
The dishonesty comes with little consequence to the officer, particularly in provinces such as Ontario where there is no law or policy requiring a prosecutor or police force to investigate the courtroom conduct.
One Toronto officer, Det. Scott Aikman, has twice been accused of being untruthful by judges in different cases. The story of Aikman, and the two cases that crumbled, will be in Friday’s Star.
Though some may believe it is acceptable for officers to lie after taking guns and drugs off the street, the Star found the cost of the deception to community safety across the country is high.
The following suspects have walked free after officers lied in court: an accused pimp of a teenage girl, possessors of child pornography, a major ecstasy manufacturer operating out of a Scarborough house, members of an international data-theft and fake-credit-card ring, marijuana growers, and drug dealers carrying loaded handguns.
Judges have discarded as evidence at least $40 million worth of cocaine, meth, ecstasy and weed in recent years. Some suspects, freed following police lies, continue to get in trouble with the law.
The Star attempted to contact all officers named in this series of articles. Some spoke to the newspaper. Most did not.
One of the biggest prosecutions involved Chuck Wan Leong, accused of operating an ecstasy lab in his two-storey brick house. Police found $16-million worth of ecstasy, methamphetamines and ketamine in the basement.
In that case, Justice Nola Garton said various parts of York Region Det. Robert Worthman’s testimony were “inconsistent and inaccurate,” “exaggerated,” “almost inconceivable,” an “embellishment,” “misleading,” “nonsensical” and “patently absurd.” The judge tossed the evidence and Leong walked free.
Worthman has been charged by his force with deceit and discreditable conduct.
Judges have found officers lie in court to cover up shoddy and illegal investigation techniques, excessive force, and racial profiling.
The majority of the cases reviewed by the Star involve police officers who, out of laziness, overzealousness or poor training, violated laws that protect suspects from abuse of police power, found damning evidence and then lied to cover up their flawed investigation.
“It’s the coverup that kills,” said an Ontario judge, who requested anonymity to preserve the appearance of impartiality necessary for his job.
Police officers have a difficult job and usually know who the criminals are, the judge said, but some play hunches to bust suspects, then “make stuff up” to patch their investigations.
“Police will end up lying on the witness stand. That’s just a reality … We (judges) know this happens. We talk about it all the time.”
While police officers can randomly stop vehicles to check vehicle safety or a driver’s paperwork, they must otherwise have reasonable grounds to believe an offence is being committed to stop a car, detain a person or search a house. Mere suspicion is not enough.
Suspicion is all RCMP Const. Brian Sprott had. In January 2009, on a rainy night in Maple Ridge, B.C., Sprott and his partner sat in their unmarked vehicle and watched a suspected drug house on Dewdney Trunk Rd.
Then, on a hunch, they followed Chris Xiong after he pulled out of the driveway. This was a drug investigation, not a vehicle or driver safety check.
The Mounties stopped Xiong and found 12 individually wrapped, $40 crack rocks, three cellphones and more than $800 in cash. Sprott testified at trial that he stopped Xiong for speeding.
The alleged speeding, as well as Sprott’s claim that crack rocks fell onto the pavement when the suspect exited the vehicle, gave the Mounties (Canada’s National Police Force) their reasonable grounds.
But Sprott had earlier testified during a preliminary hearing that he intended to stop Xiong before he allegedly sped from the house.
The Mountie was asked if his answers at the preliminary hearing were true and “(he) answered rather remarkably, ‘At the time, they were true,’” Justice Kathleen Ker noted.
She added: “Const. Sprott … appeared evasive and uncomfortable when questioned on this point.” On the witness stand, the Mountie, who never issued Xiong a speeding ticket, shrugged and awkwardly grinned.
“There is a legitimateShow/hide foldersShow/hide folders public interest in having police officers provide their evidence to the court in an accurate and careful manner,” said Ker, who slammed the officer’s “flip-flop,” ruled there was no legitimate reason to stop Xiong’s car, tossed the evidence and let the suspect walk.
Sprott could have saved himself and his force the embarrassment with proper police work, such as continued surveillance of the house or car.
These bogus traffic stops and warrantless searches have led to wasteful prosecutions that tied up the taxpayer-funded courts and put alleged criminals back on the street.
Though the judges in these cases recognize that such large seizures of drugs, loaded guns and “highly reliable” proof of other serious crimes “cry out for a trial on the merits,” they find the police misconduct the greater sin.
Angered at police lies in his courtroom, Justice Peter Hambly explained his difficult decision to stay charges against two men accused of operating a $16-million marijuana grow-op in Niagara Region:
“For the people involved in it to go unpunished leaves a sense of betrayal in hard-working, law-abiding people,” Hambly said, but he added: “If police lying is
tolerated by the courts, they will soon lose the respect of the community.” Hambly’s decision is being appealed.
The Star searched court judgment databases to locate cases since 2005 where judges found officers misled the court.
The 100-plus cases, from Victoria to the Northwest Territories to Halifax, involved more than 120 officers denounced by judges for outright lying, misleading or fabricating evidence. The search also revealed:
For this reason, and because of the wording and emotion of Berze’s interview of Huang after the arrest, the judge found the swerve was a “pretext,” and that Berze likely saw Huang at a gas station earlier in the night, noticed he was Asian and assumed he was involved in organized crime.
“Const. Berze was being untruthful with the court,” said B.C. Judge Elizabeth Bayliff.
The Star found 28 cases since 2005 that involved a total of 34 Toronto officers determined by judges to have misled the court.
Toronto Police Services Board chair Alok Mukherjee told the Star he has raised the issue with senior police officials and has been met with “a certain frustration and defensiveness.
They’ll say, ‘The officer was being diligent and the judge was more interested in the Charter rights of a criminal than the fact that the officer found a gun, and they let that person go.’”
Mukherjee added, “I have some degree of frustration because I believe judges should be listened to.”
In a combative letter to the Star, Toronto Police spokesperson Mark Pugash equated the language used by judges in the cases reviewed by the Star to “throwaway comments unsupported by evidence.”
“You either don’t understand, or you don’t want your readers to understand, the fundamental distinction between a judge’s comments and a judge’s rulings,” Pugash continued. “Without an understanding of such a basic point, your story cannot be taken seriously.”
“A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt,” Pugash said.
“The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence.”
Pugash said the onus is on defence lawyers, prosecutors and judges to report concerns over an officer’s testimony to police for investigation.
The cases in the Star study show judges painstakingly reviewed and deconstructed the facts, testimony and physical evidence presented in court, and concluded that officers lied.
The 100-plus cases found by the Star represent only a fraction of the problem.
One reason is that not all judgments are disseminated to the public.
Another reason, several sources say, is that when confronted with police dishonesty, some judges are reluctant to call it by its name, instead choosing innocuous language when assessing flawed officer testimony.
“It’s difficult to accuse someone who works so hard in the public interest of misleading the court,” said the Ontario judge interviewed by the Star.
Some lies, though, cannot escape the spotlight, especially when video or audio tells the unadulterated truth.
Video shot by civilian eyewitnesses exposed the lies of two Calgary officers who beat Jason Arkinstall while he was handcuffed and then charged him with obstructing, threatening and assaulting an officer.
The video, shot after 3 a.m. on Aug. 31, 2008, the weekend of a tattoo convention, shows Const. Brant Derrick smacking Arkinstall in the back of his head and throwing him head first and onto his stomach in a police van’s rear caged compartment.
Arkinstall was thrown with such force his flailing legs almost hit the van roof. “In an obvious burst of anger,” Judge Terry Semenuk said, Derrick slammed the van doors on Arkinstall’s leg.
Semenuk acquitted Arkinstall of threatening Derrick. The other two charges were dropped before trial. The officers, the judge said, were “unreliable and not credible.”
Judge Semenuk was understating.
In court, before Derrick knew the video existed, Arkinstall’s lawyer asked him if he struck Arkinstall before throwing him into the van and slamming the van door.
Derrick: “It didn’t happen.”
Lawyer: “Didn’t happen?”
Derrick: “No.”
Lawyer: “You’re sure of that.”
Derrick: “Yes. I’m sure of that.”
Back inside a courtroom on University Ave. in Toronto, after listening to Justice Backhouse rule that Officers Shin and Tremblay lied and the gun they found was inadmissible, Delroy Mattison, clutching a small, yellow Bible, bows his head, smiles and walks out of the prisoner’s box a free man.
“The officers fabricated their story. They did as they felt. They lied,” Mattison says outside the courtroom. “They go to school for training. (Someone) should ensure the police are not breaking their own code.”
Mattison, 26, sees the judge in the hallway.
“Thank you, miss,” he says but gets no response as she passes through a door and into an office.
This is Part 3. Read Part 1 & Part 2.
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Originally posted at TheStar.com and written by David Bruser and Jesse McLeanTheir false testimony conceals illegal techniques, excessive force and racial profiling. But accused criminals are walking free as Canadian judges clamp down.
Visibly nervous, papers shaking in their hands, Toronto police officers Jay Shin and Joseph Tremblay testified under oath that they stopped Delroy Mattison’s Chrysler Intrepid on the afternoon of July 18, 2011, because they saw him using a cellphone.
The officers were lying, just not very well.
In Mattison’s trunk that summer day were a stainless steel .357 Smith & Wesson revolver and 31 bullets. Mattison, who had a previous conviction for armed robbery, was on his way to a drug deal.
Under the law, these officers needed a reason to stop and detain Mattison. Without one, they would never have found the gun.
The problem is they never seized a cellphone or noted the existence of one in paperwork filled out at the scene. That night, a third officer snapped photos of the impounded Chrysler’s interior, none showing a phone.
“Officers Shin and Tremblay were untruthful about seeing Mr. Mattison using a cellphone,” Justice Nancy Backhouse ruled. She tossed the evidence, saying, “This court must dissociate itself from (this) serious and deliberate state misconduct.” Mattison walked free.
Backhouse was trying to send a message, one being repeated by concerned judges in courtrooms across the country: Police dishonesty makes a mockery of the courts, undermines the public’s trust in the justice system and must be condemned. There is little evidence anyone is listening.
A nationwide Toronto Star investigation shows judges are frequently finding that police officers lie under oath.
The dishonesty comes with little consequence to the officer, particularly in provinces such as Ontario where there is no law or policy requiring a prosecutor or police force to investigate the courtroom conduct.
One Toronto officer, Det. Scott Aikman, has twice been accused of being untruthful by judges in different cases. The story of Aikman, and the two cases that crumbled, will be in Friday’s Star.
Though some may believe it is acceptable for officers to lie after taking guns and drugs off the street, the Star found the cost of the deception to community safety across the country is high.
The following suspects have walked free after officers lied in court: an accused pimp of a teenage girl, possessors of child pornography, a major ecstasy manufacturer operating out of a Scarborough house, members of an international data-theft and fake-credit-card ring, marijuana growers, and drug dealers carrying loaded handguns.
Judges have discarded as evidence at least $40 million worth of cocaine, meth, ecstasy and weed in recent years. Some suspects, freed following police lies, continue to get in trouble with the law.
The Star attempted to contact all officers named in this series of articles. Some spoke to the newspaper. Most did not.
One of the biggest prosecutions involved Chuck Wan Leong, accused of operating an ecstasy lab in his two-storey brick house. Police found $16-million worth of ecstasy, methamphetamines and ketamine in the basement.
In that case, Justice Nola Garton said various parts of York Region Det. Robert Worthman’s testimony were “inconsistent and inaccurate,” “exaggerated,” “almost inconceivable,” an “embellishment,” “misleading,” “nonsensical” and “patently absurd.” The judge tossed the evidence and Leong walked free.
Worthman has been charged by his force with deceit and discreditable conduct.
Judges have found officers lie in court to cover up shoddy and illegal investigation techniques, excessive force, and racial profiling.
The majority of the cases reviewed by the Star involve police officers who, out of laziness, overzealousness or poor training, violated laws that protect suspects from abuse of police power, found damning evidence and then lied to cover up their flawed investigation.
“It’s the coverup that kills,” said an Ontario judge, who requested anonymity to preserve the appearance of impartiality necessary for his job.
Police officers have a difficult job and usually know who the criminals are, the judge said, but some play hunches to bust suspects, then “make stuff up” to patch their investigations.
“Police will end up lying on the witness stand. That’s just a reality … We (judges) know this happens. We talk about it all the time.”
While police officers can randomly stop vehicles to check vehicle safety or a driver’s paperwork, they must otherwise have reasonable grounds to believe an offence is being committed to stop a car, detain a person or search a house. Mere suspicion is not enough.
Suspicion is all RCMP Const. Brian Sprott had. In January 2009, on a rainy night in Maple Ridge, B.C., Sprott and his partner sat in their unmarked vehicle and watched a suspected drug house on Dewdney Trunk Rd.
Then, on a hunch, they followed Chris Xiong after he pulled out of the driveway. This was a drug investigation, not a vehicle or driver safety check.
The Mounties stopped Xiong and found 12 individually wrapped, $40 crack rocks, three cellphones and more than $800 in cash. Sprott testified at trial that he stopped Xiong for speeding.
The alleged speeding, as well as Sprott’s claim that crack rocks fell onto the pavement when the suspect exited the vehicle, gave the Mounties (Canada’s National Police Force) their reasonable grounds.
But Sprott had earlier testified during a preliminary hearing that he intended to stop Xiong before he allegedly sped from the house.
The Mountie was asked if his answers at the preliminary hearing were true and “(he) answered rather remarkably, ‘At the time, they were true,’” Justice Kathleen Ker noted.
She added: “Const. Sprott … appeared evasive and uncomfortable when questioned on this point.” On the witness stand, the Mountie, who never issued Xiong a speeding ticket, shrugged and awkwardly grinned.
“There is a legitimateShow/hide foldersShow/hide folders public interest in having police officers provide their evidence to the court in an accurate and careful manner,” said Ker, who slammed the officer’s “flip-flop,” ruled there was no legitimate reason to stop Xiong’s car, tossed the evidence and let the suspect walk.
Sprott could have saved himself and his force the embarrassment with proper police work, such as continued surveillance of the house or car.
These bogus traffic stops and warrantless searches have led to wasteful prosecutions that tied up the taxpayer-funded courts and put alleged criminals back on the street.
Though the judges in these cases recognize that such large seizures of drugs, loaded guns and “highly reliable” proof of other serious crimes “cry out for a trial on the merits,” they find the police misconduct the greater sin.
Angered at police lies in his courtroom, Justice Peter Hambly explained his difficult decision to stay charges against two men accused of operating a $16-million marijuana grow-op in Niagara Region:
“For the people involved in it to go unpunished leaves a sense of betrayal in hard-working, law-abiding people,” Hambly said, but he added: “If police lying is
tolerated by the courts, they will soon lose the respect of the community.” Hambly’s decision is being appealed.
The Star searched court judgment databases to locate cases since 2005 where judges found officers misled the court.
The 100-plus cases, from Victoria to the Northwest Territories to Halifax, involved more than 120 officers denounced by judges for outright lying, misleading or fabricating evidence. The search also revealed:
- Some of the words judges used to describe police evidence and testimony were “lie,” “fabricate,” “evasive,” “absurd,” “ridiculous,” “subversive,” “disturbing” and “pure fiction.”
- Two officers — one in Victoria, the other a Toronto detective — have each misled the court in two separate cases.
- The chief of a suburban Winnipeg police force was charged with perjury and his force taken over by the RCMP after he allegedly lied to cover up details of his former partner’s role in a fatal drunk driving accident.
- In several cases, officers assaulted a suspect, then began their coverup by charging their victim with assaulting and obstructing police. Some of the victims were guilty of nothing more than a bad attitude.
- Racial profiling, and the subsequent police deception meant to hide the misconduct from public view, cost the people of 100 Mile House, B.C., the prosecution of Zai Chong Huang and the 57 marijuana plants found in his Dodge pickup by RCMP Const. Berze.
For this reason, and because of the wording and emotion of Berze’s interview of Huang after the arrest, the judge found the swerve was a “pretext,” and that Berze likely saw Huang at a gas station earlier in the night, noticed he was Asian and assumed he was involved in organized crime.
“Const. Berze was being untruthful with the court,” said B.C. Judge Elizabeth Bayliff.
The Star found 28 cases since 2005 that involved a total of 34 Toronto officers determined by judges to have misled the court.
Toronto Police Services Board chair Alok Mukherjee told the Star he has raised the issue with senior police officials and has been met with “a certain frustration and defensiveness.
They’ll say, ‘The officer was being diligent and the judge was more interested in the Charter rights of a criminal than the fact that the officer found a gun, and they let that person go.’”
Mukherjee added, “I have some degree of frustration because I believe judges should be listened to.”
In a combative letter to the Star, Toronto Police spokesperson Mark Pugash equated the language used by judges in the cases reviewed by the Star to “throwaway comments unsupported by evidence.”
“You either don’t understand, or you don’t want your readers to understand, the fundamental distinction between a judge’s comments and a judge’s rulings,” Pugash continued. “Without an understanding of such a basic point, your story cannot be taken seriously.”
“A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt,” Pugash said.
“The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence.”
Pugash said the onus is on defence lawyers, prosecutors and judges to report concerns over an officer’s testimony to police for investigation.
The cases in the Star study show judges painstakingly reviewed and deconstructed the facts, testimony and physical evidence presented in court, and concluded that officers lied.
The 100-plus cases found by the Star represent only a fraction of the problem.
One reason is that not all judgments are disseminated to the public.
Another reason, several sources say, is that when confronted with police dishonesty, some judges are reluctant to call it by its name, instead choosing innocuous language when assessing flawed officer testimony.
“It’s difficult to accuse someone who works so hard in the public interest of misleading the court,” said the Ontario judge interviewed by the Star.
Some lies, though, cannot escape the spotlight, especially when video or audio tells the unadulterated truth.
Video shot by civilian eyewitnesses exposed the lies of two Calgary officers who beat Jason Arkinstall while he was handcuffed and then charged him with obstructing, threatening and assaulting an officer.
The video, shot after 3 a.m. on Aug. 31, 2008, the weekend of a tattoo convention, shows Const. Brant Derrick smacking Arkinstall in the back of his head and throwing him head first and onto his stomach in a police van’s rear caged compartment.
Arkinstall was thrown with such force his flailing legs almost hit the van roof. “In an obvious burst of anger,” Judge Terry Semenuk said, Derrick slammed the van doors on Arkinstall’s leg.
Semenuk acquitted Arkinstall of threatening Derrick. The other two charges were dropped before trial. The officers, the judge said, were “unreliable and not credible.”
Judge Semenuk was understating.
In court, before Derrick knew the video existed, Arkinstall’s lawyer asked him if he struck Arkinstall before throwing him into the van and slamming the van door.
Derrick: “It didn’t happen.”
Lawyer: “Didn’t happen?”
Derrick: “No.”
Lawyer: “You’re sure of that.”
Derrick: “Yes. I’m sure of that.”
Back inside a courtroom on University Ave. in Toronto, after listening to Justice Backhouse rule that Officers Shin and Tremblay lied and the gun they found was inadmissible, Delroy Mattison, clutching a small, yellow Bible, bows his head, smiles and walks out of the prisoner’s box a free man.
“The officers fabricated their story. They did as they felt. They lied,” Mattison says outside the courtroom. “They go to school for training. (Someone) should ensure the police are not breaking their own code.”
Mattison, 26, sees the judge in the hallway.
“Thank you, miss,” he says but gets no response as she passes through a door and into an office.