Defence lawyers are casting doubt on a new Crown policy on police who lie in court over concerns the system will result in a “bureaucratic quagmire” as the government pays lip service to complaints about the issue.
In the eight months since it announced the new policy, the Ministry of the Attorney General has referred matters to police on three occasions where judges in Ontario have made findings that officers were untruthful in their testimony.
But the province is refusing to identify the cases, the officers, the police service asked to investigate or the outcome of any review.
The lack of public information about the Crown referrals and the scant details about the process the ministry has set up are raising questions about whether any substantive change has taken place when it comes to judicial findings that police have lied in court.
As well, in one widely publicized case earlier this year in which a judge criticized the use of a stun gun on a hospital patient with mental health issues, the Crown took no further action and the Halton Regional Police Service concluded that the court was wrong to find the officer’s testimony was untruthful.
Justice Stephen D. Brown acquitted Douglas Brown of assaulting a nurse and social worker at a Burlington, Ont., hospital in a ruling issued in April. “This case is an indictment of the treatment of mentally ill individuals in our public health system and in our judicial system,” wrote the judge.
He concluded there was excessive force and that Sgt. Stephen Carroll, an officer with more than 35 years of experience at the time of the incident, didn’t tell the truth about his deployment of the stun gun. The judge also described the testimony of Sgt. Brian Stapleton as untruthful. He found the officer engaged in “wilful blindness” about the actions of his colleague and prepared “totally deficient” notes.
Despite the ongoing concerns, the province is remaining mum on its actions. “The ministry will not be commenting on whether reviews are undertaken in specific matters or the results of any such reviews,” said Brendan Crawley, spokesman for the ministry.
A spokesman for Halton police tells Law Times the Crown didn’t refer the matter for further investigation. Nevertheless, Chief Stephen Tanner ordered an internal review. It concluded the officers “were justified in their actions” and “were not untruthful in their testimony,” says Halton police Sgt. Dave Cross.
The Crown and Halton police are effectively “thumbing their nose” at the judge, says Wendy Oughtred, a Burlington lawyer who represented Brown, the accused, at his trial. “It is not going to get much clearer. They were caught in a lie,” says Oughtred.
She questions whether the new Crown policy amounts to more than “lip service” if it doesn’t believe findings such as those made by Brown merit further review of police conduct.
A practice memorandum dated Jan. 9 and sent to all Crown attorneys by assistant deputy attorney general James Cornish outlines the specifics of the new policy. The memo begins by stating that “the vast majority of police officers testify in an honest and straightforward manner.” This conclusion stems from a review by Cornish after he “consulted broadly and determined that it is rare for a trial judge to make comments suggesting a police officer has been deliberately dishonest under oath,” said Crawley. (The ministry didn’t respond to a request by Law Times seeking to clarify the difference between a judicial finding of dishonesty and one a of deliberate lie.)
If a judge has concluded an officer was deliberately untruthful, the memo states the trial Crown must forward the comments to the Crown attorney. Within 30 days of receiving material from the trial prosecutor, the Crown attorney must decide whether to refer the matter to the director of Crown operations. At this point, the Crown makes a decision on whether to forward the comments to the police service that employs the officer.
Defence lawyer Edward Sapiano, who has frequently been outspoken about police misconduct, questions the good faith behind the new policy.
“Why is such a complex, multilevel bureaucratic decision-making apparatus required merely to determine whether a police officer should be criminally investigated after being publicly labelled a deliberately dishonest witness by a trial judge?” asks Sapiano. The new policy is “a bureaucratic quagmire from which a charge of perjury will never emerge,” he adds.
Toronto defence lawyer Leora Shemesh echoes that view. “I don’t think you need a new policy” to take action when a judge finds that a police officer has lied in court, she says.
“If I were found to have lied in court, I would be up before the law society in no time,” says Shemesh. She also has concerns about the fact that even if the Crown refers a matter to police, it doesn’t do so to an outside investigative agency.
Shemesh represented a Toronto cook who had impaired driving and other charges stayed this spring as a result of the conduct of several police officers. One of the officers is now facing a charge of assault causing bodily harm following a ruling issued by Justice Ford Clements.
The judge also concluded that the testimony of six Toronto officers was “contrary to logic and common sense” and that there was a “contrived effort” by the police witnesses to justify their actions.
A spokeswoman for Toronto police says the force’s professional standards branch has launched an internal investigation based on Clements’ findings in the case.
