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Are the police receiving adequate training on mental illness

On February 3, 2012, a Toronto police officer shot and killed Michael Eligon, who was believed to be mentally ill. Eligon was admitted to Toronto East General Hospital on January 31, 2012 for a mental assessment and was supposed to be picked up by his foster mother on February 3, 2012. He walked out of the hospital in his hospital gown and walked around the neighbourhood looking confused and disoriented. He also had two pairs of scissors he took from a convenience store nearby. He attempted to enter into a number of homes and a few people called the police. The police arrived and an officer shot at Eligon three times when they finally found him, with one of the shots hitting and killing Eligon. 

This was a complete shock to the neighbourhood and brought an array of questions regarding the police and the adequacy of the training they receive on dealing with people who have a mental illness. Neighbours raised their concerns since these incidents keep occurring, as exemplified by the cases of Charlie McGillivary and Sylvia Klibingaitis that happened last year.

Charles McGillivary was unable to speak due to a childhood accident and communicated through sign language with his mother and used a handful of words only she could understand. He collapsed and died while being arrested by police. They mistakenly took him for another suspect and due to his large frame and the fact that he couldnat speak, they took him down while arresting him. McGillivary fell into medical distress and was later pronounced dead at the hospital. He was walking with his mother when this occurred and the police wouldnat listen to her pleas that he was mentally ill and couldnat speak.

Sylvia Klibingaitis struggled with schizophrenia, bipolar disorder and psychotic delusions. She had apeak anxietya during the weeks prior to her death, and she made a 9-1-1 call for help during a mental crisis. She told the operator that she had a knife and that she was going to commit a crime. According to the S Investigations Unit (SIU), Klibingaitis burst out the front door with a large knife in her right hand when a police officer approached her home. The officer backed away from the house toward the curb. As she followed him toward the curb with knife in hand, he pulled his gun from its holster and repeatedly yelled, aPut the knife down!a She refused and moved closer. The officer fired three times. One bullet hit the garage door and another struck her in the chest, killing her.

The SIU was contacted in both cases, and in both cases the police officers were cleared of any wrongdoing.

It seems that front-line police officers are coming into more contact with people who have mental health issues, but they receive very little mental health support and training. On the Canadian Mental Health Association website, it states that a study by the London Police Department showed that between 1998 and 2001, the number of hours uniformed police spent dealing with people with serious mental illness doubled from 5,000 to 10,000. The same study showed that calls involving people with mental illness took up to $3.7 million of the $43-million London Police Department budget in 2001. The study also showed that the increase in calls was for minor nuisance crimes or no crime at all, and that violent crime among people with serious mental illness was actually decreasing.

In a resolution passed in June 2003, the Ontario Association of Chiefs of Police recognized that "the inadequate funding of community mental health services has resulted in vulnerable individuals being at risk of increased contact with the police and increased involvement in the criminal justice system."

Deputy Chief Michael Federico said all Toronto officers are given mental-health training each year when they have two days of use-of-force training. It includes instruction on how to calm situations down verbally and realistic role-play scenarios that mimic responding to someone with a mental illness. Additional training varies by specific job and the year, he said. Police in Halifax and York Region have adopted an intensive 40-hour training program, developed in Memphis, Tennessee. The program takes officers to a mental-health ward and gives them extra verbal techniques.

Mr. Pritchard, a retired co-director of Christian Peacemaker Teams is calling for existing crisis teams, which pair a mental-health professional with an officer, to be available throughout the city, 24 hours a day. As of now, they are available in 10 of 17 policing divisions for 10 hours a day. In Hamilton and other jurisdictions, such teams are available at all hours.

This leaves us asking a lot of questions regarding how equipped the police are in handling situations that involve the mentally ill. An important aspect to think about is the way in which those with mental health issues are viewed by others and if they may automatically be viewed as violent by the police. It begs the question of whether this is an issue of inadequate support and training, or a bias on the part of the police when it comes to handling interactions with those who are mentally ill. Many people believe that the police are treating people with mental illness like criminals and that something needs to be done in order to prevent further needless deaths of mentally ill people at the hands of the police.

It is important to prevent the criminalization of the mentally ill, which seems to be a big issue. A report by the Canadian Mental Health Association, BC Division, estimates that the percentage of mentally disordered offenders currently in jails and prisons range from 15 to 40%. This is a serious problem that needs to be genuinely addressed by the police. What solutions do you suggest for improving the ways in which police handle situations concerning people with a mental illness? Is more training required or should police receive more educational awareness regarding mental health matters, or both? As interactions between the police and the mentally ill increases, we will see if our concerns are going to be adequately addressed or not. 

Posted by Ada Vrana (Windsor Law I)

Windsor Police Officers found not guilty of discreditable conduct in investigation of Dr. Abouhassan case

Two Windsor police officers Paul Bridgeman and Patrick Keane have been found not guilty of charges of discreditable conduct in connection to a complaint made by Windsor resident Dr. Tyceer Abouhassan.  Charged under the Police Act, the two Staff Sergeants were accused of trying to broker a deal with Dr. Abouhassan to drop charges laid against the doctor in exchange for him to drop charges laid against a Windsor detective resulting from an altercation.

Though charges were eventually dropped against Dr. Abouhassan, Det. David Van Buskirk is set to go on trial this June following an outside agency charging him with excessive use of force, discreditable conduct, unlawful arrest and deceit for making a false record. 

Adjudicator Morris Elbers, a retired OPP superintendent, oversaw the Police Act hearing and concluded the prosecutionas case against the two Staff Sergeants failed to meet athe standard of clear and convincing evidence to make a finding of guilta. 

The adjudicatoras 12-page decision stated that the investigation launched by the Office of the Independent Police Review Director relied largely on the testimony of Abouhassanas lawyer, and on the notes of those involved.  Elbers commented that the lack of any notation by officer Keane on a meeting with Abouhassanas lawyer was adistressinga, and described officer Bridgemanas notes as being adismala.  Elbers further commented that Abhouhassanas lawyer admitted to omissions made, and that the lawyer aconcluded that all the meetings with the officers were ethicala.

In response to the case, the adjudicator stated that Windsor Police should put in place policies to guarantee this does not happen again, and suggested requiring police of superintendent rank or higher be present during meetings between police and defence lawyers. He stressed the importance of properly recording such meetings, a procedure necessary ato preserve the integrity of the investigation and the transparency of the organization.a

Elbers further suggested Windsor Police take aa hands-off approach when a member of their service is charged criminallya, and stated the department ashould be enacting policy to prevent this situation from arising again.a

Acting Windsor police Chief Al Frederick stated that the department atakes all allegations of police misconduct very seriouslya, however he expressed that he was pleased with the adjudicatoras decision.    

The allegations against the two Staff Sergeants stems from an altercation between Dr. Abouhassan and Det. Van Buskirk outside the Jackson Park Medical Centre on April 22, 2010.  Abouhassan has filed a $14.2-million claim against the Windsor Police, claiming he was beaten and seriously injured by Van Buskirk as a result of mistaken identity and was then wrongfully charged by Windsor Police in an alleged attempt to protect their own officers.

Posted by Ben Dillon (Windsor Law I) 

New Rules for Web Surveillance under Bill C-51

The Conservative government has introduced a law that will increase police power in monitoring Internet-surfing of Canadians.  Bill C-51, titled aan Act to enact the Investigating and Preventing Electronic Communications Act and to amend the Criminal Code and others Actsa, would require Internet Service providers (ISPs) to install and use equipment allowing the police easier access in monitoring and viewing stored Internet-surfing history of their clients.  Under Bill C-51 the police would have the power to have ISPs collect and preserve Internet surfing data for anyone suspected to be engaged in criminal activity without requiring a warrant.

Bill C-51 will also allow police to more easily activate cellphone tracking mechanisms to track the whereabouts of suspected criminals.  While cellphone tracking of suspected terrorists can currently be performed for up to 60 days, the new law would allow police to track suspected terrorists for up to one year. 

Public Safety Spokesperson Julie Carmichael claims that the new measures are aimed to bring our laws into the 21st century, and will provide police with the tools needed to do their job.   She wrote: aRather than making things easier for child pornographers and organized criminals, we call on all Canadians to support these balanced measuresa.  She stated Bill C-51 follows policies adopted by Sweden, the United States, Australia and Germany, and claimed the Bill astrikes an appropriate balance between the investigative powers used to protect public safety and the necessity to safeguard the privacy of Canadiansa.

Many advocates of Internet-privacy - including the privacy Commissioner of Canada, have expressed fear over the Billas impact on civil liberties, and have warned the government not to adopt the bill on the grounds that it would lead to serious infringements of civil liberties.  Opponents of the Bill have claimed that the new laws would allow police to obtain personal information on suspects at any time without first obtaining a warrant, while the current law allows police to bypass warrants only in emergency situations.  

In response to the proposed Bill, the Canadian Association of Chiefs of Police (CACP) claimed the law will be difficult to justify, stating they acould not find a sufficient quantity of credible examplesa for an older version of the legislation. 

In defence of Bill C-51, Public Safety Minister Vic Toews stated that opponents of the Bill were aputting the rights of the child pornographers and organized crime ahead of the rights of law-abiding citizensa.  In response to Toewsa, federal Privacy Commissioner said in a recent letter to Toews that she sees no valid arguments to justify legislating these new surveillance powers over the Internet.   In 2009, then Public Safety Minister Pete Van Loan cited kidnapping where police had to wait 36 hours to obtain a warrant as evidence of the need for Bill C-51.  However in rebuttal, digital policy expert Michael Geist revealed that the incident did not involve any requests to ISPs by police for customer data.  

Posted by Ben Dillon (Windsor Law I)

Can Racial Profiling be Eradicated in Montreal?

A couple months ago, a Quebec Superior Court ordered a new trial for Joel Debellefeuille, who refused to show identification when stopped by Montreal police. The police report pointed out areasonsa for the stop including the fact that the car belonged to a man by the name of Debellefeuille but the person they had stopped was a black man who did not acorrespond at first sight to the ownera. The report also stated that Debellefeuille sounded like a Quebecois family name and not a name of another origin. Finally, the intercepting officer specifically wrote that the primary reason he stopped Debellefeuille was because of his race.

Cases like this one - coupled with the fact that in the first half of 2011 they received 10 complaints against the Montreal police force for racial profiling a caused the Quebec Human Rights Commission to create a report with 93 recommendations to address racial profiling and discrimination in Quebec.

As a result, Mayor GA(c)rald Tremblay and Montreal police chief Marc Parent have outlined a azero tolerancea policy surrounding racial profiling with the goal of having a better understanding of vulnerable groups in society. The proposal calls for equal access to jobs, housing and social programs as well as monetary aid from the Province to help fight poverty and the resulting issues that arise from it.  The Mayor also stresses the responsibility that the public has in making Montreal a more tolerant community. At a press conference on the new initiative, Mayor Tremblay spoke of Montreal as an example of multiculturalism and stressed that, aProfiling in any shape or form is unacceptablea.

However, there is valid concern that the plan, press conferences and statements, however well intentioned, will end up simply being symbolic and ignoring both the root causes of profiling while also failing to provide consequences for when it occurs. For instance, Fo Niemi, director of the Centre for Research Action on Race Relations commented on the policy stating that, aThe real skepticism lies in the position of the Police Brotherhood Union on racial and social profiling, and how it will work with the police management team to equip all officers with better management skills to police a diverse city. To date, the position is not clearly articulated where the plan of action is concerned.a

Niemi says that two recommendations specifically would have an immediate impact. First, that Montreal police revise the tactics being used by their anti-gang unit, which, he says, has been known to target young black men as being suspected of being gang members. The second is that Montreal police alter their policies regarding incivilities, which can include any public conduct deemed to be uncivil such as talking loudly, jaywalking or spitting in the street. The willingness of police to stop and fine people for these actions give them the leeway to go after a broad range of people as they choose.

The effectiveness of the azero tolerancea policy will depend on willingness at all levels of policing to keep an open mind and implement true changes that are meant to reach the root cause, not to quell negative press. What seems to be lacking are any concrete plans on how these police officers will be trained to think different about minority populations. Do these elected officials truly believe that years of inherent biases can be eradicated simply by stating that they are inappropriate? What would the most important changes be in trying to rid policing of racial bias and profiling? Similarly, what would the appropriate penalties even be for officers that participate in profiling, whether intentional or not?

Posted by Melissa Crowley (Windsor Law II)

Police Dogs and Excessive Force

Christopher Evans is now suing the Vancouver Police Department (VPD) as a result of injuries he sustained from what he alleges to be aexcessive use of a police doga. In June of 2011, Mr. Evans had smashed a window on a bus and subsequently fled the scene on his skateboard.  He was then pursued by a police force and a police-dog. Mr. Evans was acaughta by the dog that bit him so severely that the artery in his leg was nearly hit and Mr. Evans needed almost 100 staples to be closed.

Background a Police Dogs

The Vancouver Police Departmentas Dog Squad has been in operation since 1959 and it is the oldest municipal dog squad in Canada. Dogs and dog-handlers go through extensive training that starts when the dog is young in order to train the dog well, and to formulate a abonda and comfort-level between the dog and dog-handler. There are two circumstances in which a police-dog will be used on a suspect: (1) When the dog-handling police officers believe that a criminal offence has been committed and (2) When the dog-handling police officers feel that the use of force ais needed to apprehend the suspecta.

Observations

The main issue involving police dogs is whether using them constitutes excessive force, and if so, when can using a dog be justified? Police dogs are well-trained and can readily be thought of as any other weapon used by a police officer. As stated in the article, Professor Stan Coren of the University of British Columbia explained that aa dog can kill a person in less than 30 secondsa. This was quite possible in the case involving Mr. Evans where: had the dog bit through to the artery in his leg, Mr. Evans could have bled out in moments. 

Police dogs are employed in situations where a suspect needs to be apprehended. In the case of Mr. Evans, it seems fair that a police dog was used as Mr. Evans had the advantage of his skateboard while fleeing.  However, what is of particular concern is what the dog was trained to do after it had apprehended the suspect. Are dogs being trained to employ excessive force on suspects that the dog determines to be a threat? Or, was it merely because Mr. Evans continued to resist that the dog persisted in attacking him? What is noted in the article is that dogs are trained to stop attacking if the suspect goes aslacka. However, is it really that easy to go aslacka when being pursued by a potentially deadly animal?

Of particular concern is the safety of the public at large and the ability to control a police dog, particularly a police dog that goes aroguea.  Granted, police dogs in force are selectively chosen and trained well. However, anything is possible when there is no control over the dog that may areada a situation incorrectly and attack anyway. If a deadly attack were to occur, can it simply be concluded that the dog went rogue? Or, was more need to be done when training and controlling the dog? Some may see how it is possible that a dog can be used as a ascapegoata for police officers who, rather than using force themselves, rely on the dog to do it for them.  An attack by a dog would face less public outcry than an attack by a police officer. Further, very few, if any articles have emerged where a police dog has killed a suspect. Likewise, little negative feedback has surfaced regarding the use of police dogs, even in situations where they attack suspects severely.

On the flip side, the use of police dogs has become a helpful tool to the police. Dogs are used in an array of activities including: finding missing persons; detecting explosives; searching for narcotics, drugs and alcohol; crowd control and several others. Dogs have significantly keener sensory abilities than humans and can conduct searches and chases much faster than humans. In many regards, a dog is an extremely intelligent and useful weapon when trained properly and employed correctly by police. 

Like any weapon or force employed by police, however, there will always be some controversy.  As a result of this case, an inquiry into the Dog Squad has begun by Pivot Legal Society lawyer Douglas King. Mr. King claims that the dogs should only be used when all other arrest tactics have been exhausted. This is understandable given the sheer strength and potential viciousness of the dog. However, in the case of Mr. Evans, it was not necessarily a question of why a dog was used, but rather, how the dog was trained, particularly after it caught a suspect. In the meantime, it will be interesting to see what transpires from this lawsuit and whether training and tactics will be proactively altered in order to better ensure the safety of the public from police dogs. 

Posted by Audrey Wong (Windsor Law I)

RCMP Training Postponed Amid Racial Profiling and Abuse Findings

On January 27, the RCMP scrapped a program to send hundreds of police officers to Arizona for drug recognition training after learning that a recent U.S. Department of Justice Report found areasonable cause to believea that the Maricopa County Sheriffas Office had engaged in a practice of misconduct that violated the U.S. Constitution and Civil Rights Act, 1964. The Report, at page 2, also indicates that the violations are to such an extent that the DOJ is prepared to commence civil proceedings against the Sheriffas Office if it does not comply with a federal judicial process to reform the detachmentas practices immediately.

The DOJ found cause to believe that violations occurred in the following areas: 1. Discriminatory practices including unlawful stops, detentions and arrests of Latinos; 2. Unlawful retaliation against individuals exercising their First Amendment right to criticize MCSOas policies or practices, including but not limited to practices relating to its discriminatory treatment of Latinos; and 3. Discriminatory jail practices against Latino inmates with limited English proficiency by punishing them and denying them critical services.  

The Justice Department found a number of long-standing and entrenched systemic deficiencies that caused or contributed to these patterns of unlawful conduct, including:  1. Failure to implement policies guiding deputies on lawful policing practices; 2. Allowing specialized units to engage in unconstitutional practices; 3. Inadequate training and supervision; 4. An ineffective disciplinary, oversight and accountability system; and 5. A lack of sufficient external oversight and accountability.   

In addition to these formal pattern or practice findings, the investigation uncovered additional areas of serious concern, including:  1. Use of excessive force; 2. Police practices that have the effect of significantly compromising MCSOas ability to adequately protect Latino residents; and 3. Failure to adequately investigate allegations of sexual assaults.  

The Report is drawing concern in Canada because the Maricopa County police detachment has partnered with the RCMP for years, with Maricopa officers instructing in Canada and RCMP officers doing afield certificationa at the countyas jail. That field work has included having RCMP officers, from both municipal and provincial forces, practice drug recognition training on individuals arrested for allegedly driving while impaired. Although Deputy Commissioner Doug Lang cancelled the partnership with Maricopa within days of being alerted to the Report by the British Columbia Civil Liberties Association, noting that it brings ainto questiona certain police practices in Maricopa County.

But some are speculating that the implications span wider than Maricopa County and may impact criminal investigations and cases that are already before Canadian courts, as the Maricopa Sheriffas Office is said to be responsible for training upwards of 85 percent of all drug-recognition experts in North America. As a result, B.C. Civil Liberties Association Executive Director David Eby has called on the RCMP to conduct a retroactive review to determine if the training RCMP officers have received over the years is reliable and complies with Canadian societal norms and constitutional standards.

According to the Montreal Gazette, RCMP Inspector Allan Lucier responded by saying that although the drug recognition materials the RCMP uses were developed in the United States, they have been modified to ensure they conform to Canadian laws.

Mericopa County Sheriff Joe Arpaio has called the investigation and attempted reforms politically orchestrated and an ainvitation to illegalsa. Arpaio is also currently under fire for his officeas failure to properly investigate more than 400 sex crimes, which has also prompted calls for his resignation. The Justice Department has given Arpaio 60 days to reach a court enforceable agreement to reform policing practices and systemic deficiencies at the Mericopa detachment.

Posted by Jeremy Tatum (Windsor Law III)


Ottawa Police Association Considering Equipping Officers with Cameras

In response to growing concern over the use of racial profiling and excessive force within the Ottawa Police Service, the Ottawa Sun reports that the new president of the Ottawa Police Association, Matt Skof, believes that this misperception would be dispelled if officers were outfitted with small personalized cameras recording their interactions with citizens.

Skof denies that racial profiling exists amongst Ottawa police but contends that the measure is nevertheless necessary to protect officers, result in cost-saving for the City of Ottawa, and restore public confidence in the police. This comes in the wake of several high-profile civil claims against Ottawa Police for racial profiling and police brutality. In the cases of ChadAiken, Stacy Bonds, TerryDelay and RoxanneCarr, video recordings show Ottawa police using what is being argued amounts to excessive force and unconstitutional search techniques.

In June 2011, the Ottawa Police Service approved a newpolicy aimed at preventing and responding to officers engaging in racial profiling and discriminatory treatment. The police was drafted with the assistance of LEAP.

Posted by Jeremy Tatum (Windsor Law III) 

Improving Transparency and Accountability

With Project Accountability, acting Chief Al Frederick has demonstrated that he is prepared to respond to the public demands for accountability and transparency following allegations of police misconduct including the vicious beating of a local doctor and attempts to cover it up.

The blueprint for change and its 27 recommendations should lead to significant change in both culture and procedure. In particular, the adoption of the more liberal definition of "serious harm" which triggers the duty to report incidents to the SIU, enhanced training, new conflict of interest rules, organizational review and a comprehensive external policy review that will be conducted by the OIPRD are all salutary measures. The acting chief has shown strong leadership and should be considered as a viable candidate to be the next chief.

However, other actors in the justice system such as judges, Crown attorneys and defence lawyers also play an important role and must respond appropriately to police misconduct.

If, for example, the police believe that Crown attorneys will not report their misconduct or that judges will not make findings of misconduct or denounce it through appropriate sentences, any efforts by police administration will be thwarted.

Any blueprint for change must include these key actors.

It must also be acknowledged that there are human rights issues facing the WPS that need to be remedied. For example, unconstitutional strip search practices, allegations of discrimination, and the recruitment, retention and promotion of female, racialized and lesbian, gay, bisexual and transgender officers.

Former chief Gary Smith was a leader in his commitment to changing the human rights culture of the WPS. He partnered with many organizations including the Ontario Human Rights Commission, Windsor Law's LEAP (Law Enforcement Accountability Project) and EGALE (Equality for Gays and Lesbians Everywhere) to bring about change. He faced resistance to these initiatives and there is likely a change-resistant faction happy to see him gone.

So in addition to Project Accountability, here are some additional ideas that could form part of the blueprint for greater accountability and transparency:

* Commit to the human rights audit by the Ontario Human Rights Commission of practices and procedures initiated by former chief Smith, and implement the commission recommendations.

* Investigate the feasibility of a policy requiring all officers on duty and in the field (including officers employed by private organizations like bars) to wear a camera installed on their uniform. Technology now serves as the greatest engine of accountability as we saw with both the David Van Buskirk and Brad Snyder cases. The camera will protect officers from unwarranted accusations as well as to capture misconduct. It will also protect officers from abuse and violence as individuals will know that they are being videotaped. The head of the Ottawa Police Association has recently recommended that Ottawa implement a similar measure.

* Request that a Crown attor-ney be assigned to vet all cases involving police-initiated charges such as assault police, resist arrest, cause disturbance arising out of interactions with accused. The chief should be notified of any case where the Crown believes that the officer has used these kinds of offences to shield their misconduct and the charges should be withdrawn.

* Require the Crown Attorney's Office to notify the chief of any case where there is a judicial determination that an officer has engaged in misconduct or has provided false evidence. The chief should be required to notify the Police Services Board of all such communications from the Crown and how the matter has been dealt with. The Toronto Police Services Board is considering a similar policy.

And finally, the Windsor Police Services Board should consider moving its meetings out of the police station to more publicly accessible and friendly locations. Members of the public are much more likely to attend in these circumstances. And to gauge the concerns of the public and effectiveness of any reforms initiated, it should invite yearly deputations from community groups, experts and other interested individuals to provide information about issues surrounding the delivery of services.

Windsorites are proud of their police service. It has a strong record in crime reduction, building community relationships and moving the service forward to meet the challenges it faces.

With Project Accountability and consideration of these recommendations, it should not be long until public trust is restored.

David M. Tanovich is a professor of law at the University of Windsor and academic director of the Law Enforcement Accountability Project (LEAP).

New Leadership, New Initiatives for Windsor Police

On December 23, 2011, Windsor Police Chief Gary Smith announced his retirement from the force.  His decision to retire came amid numerous allegations of brutality and misconduct by Windsor police officers, public outcry over accountability for the actions of police officers, and heavy criticism of Smith for his handling of recent allegations of police misconduct. As of the date of Smithas retirement, the Windsor Police Service was facing $72-million in lawsuits, with thirty cases alleging police brutality. Since 2006, mainly through out of court settlements, Windsor Police has paid over $820,000 of taxpayersa money to victims for malicious prosecution, wrongful arrest, and assault lawsuits.  Public discontent with the actions of many officers and the Serviceas handling of allegations of police misconduct has been palpable. 

Several high profile cases, including a $14.2-million lawsuit against the Windsor Police Service by Dr. Tyceer Abouhassan, have led to a shaken public confidence in the cityas police.  Dr. Abouhassan alleges he suffered a beating at the hands of Det. David Van Buskirk, and was subsequently charged with assault in what his lawyer has called a cover-up by police to protect an officer.  Det. Kent McMillan is charged with discreditable conduct for failing to conduct a fair and impartial investigation of the incident involving Dr. Abouhassan and is also charged with deceit for filing a false report in the case.  Regarding the publicas outrage at the Windsor Police Serviceas recent alleged action, lawyer Andrew McKay, who currently represents Det. Van Buskirk, contends that police are merely visible targets for these allegations and that misconduct is found in every field of work. 

This view that Windsor Police are merely more exposed in the public eye than others is not widely shared. Windsor Mayor Eddie Francis has joined public discontent, and has stated that the frequency in which Windsor Police vehicles are involved in crashes has caught his attention.  In an interview with the Windsor Star, Windsor Law Professor David Tanovich stated that even judges are increasingly speaking out against police officers. 
           
Since Smithas resignation, acting police Chief Al Frederick appears to be taking steps toward the right direction. Since his role as acting Chief, he has been outspoken over the need for change within the Windsor Police Service.  In a news conference, he bluntly stated that in terms of transparency and accountability for Windsor Police, the astatus quo is not the path forward for the Windsor Police Servicea.  He went on to say the Windsor Police Service will no longer athumb its nosea at the Special Investigations Unit (SIU), amid recent accusations by Ontario Ombudsman Andre Marin that the Windsor Police Service has both delayed and failed to report numerous incidents involving police misconduct.  Frederick has additionally responded to four SIU letteras originally ignored by former Chief Gary Smith, but stated that Windsor Police Serviceas failure to report certain incidents were a result of a difference in the Police Serviceas definition of aserious injurya from the SIU. 

Frederick has furthermore introduced Project Accountability, a 27-measure initiative including enhanced police training, new rules regarding conflict of interests, organizational and external policy reviews conducted by the Office of the Independent Police Review Director, and a more liberal definition of the term aserious harma.  The initiative also includes plans to move the professional standards branch out of Windsor Police Headquarters.  In an interview, Frederick stated that moving the branch, which is in charge of investigating public complaints, was made in an effort to reduce the public perception of intimidation of those reporting complaints.

Frederickas promises of change have so far appeared genuine, and as he stated, many of the 27 measures have already been implemented. It will be interesting to see whether these steps in the right direction lead to the kind of transparent and accountable police force the public desires.  But, as Professor Tanovich noted in a recent op ed in the Windsor Star, other actors in the justice system, including judges, Crown attorneys and defence lawyers, also play a crucial role in properly addressing police transparency and accountability, and should thus be considered in any plans to bring about change.

Posted by Benjamin Dillon (Windsor Law I)

Eviction aggression in the United States potential forewarning for Canadian Movements

In recent weeks it seems that members of the aOccupya movement have overstayed their welcomes and evictions have begun to be carried out. November 15 saw police officers evicting the resisting protestors situated in Zuccotti Park in New York City. There were some reports of arrests numbering approximately 70 and others of officers tear gassing, handcuffing, and dragging people by their hair from the site. Opinions are split about the appropriateness of these actions, the scope of the right to peaceful protest, and whether or not the occupiers should have been forced out to begin with.

The more troubling news however, has come in recent days with information about violent evictions and large-scale pepper spraying incidents. For example, on November 18th police were called to the University of Californiaas Davis campus, making arrests and using pepper spray in the process. The spray however, was not used to control unruly participants, but was sprayed directly in the faces of 10 to 15 participants that were sitting submissively in a row on the ground. One woman was subsequently taken to the hospital to be treated for chemical burns as a result. Videos that captured the events outraged and antagonized protestors amongst the movements. One such video can be found at the following link.
http://thelede.blogs.nytimes.com/2011/11/19/video-of-police-pepper-spraying-u-c-davis-students-provokes-outrage

This begs the question - what will happen in Canada? Occupy movements here have already experienced evictions as well. If protestors are legally evicted and refuse to leave, should police officers be allowed to take similar action to that which was taken in California?  Will protestors and police officers alike be particularly on edge because of the memories of G20? Do protestors have the right to be on the defensive and should police officers proceed with added caution?

Posted by Melissa Crowley (Windsor Law II)

Google Denies Request to Take Down Police-Brutality Video

Google has recently revealed that it has refused the request of a U.S. law enforcement agency to remove a YouTube video that contains acts of police brutality.  Although Google did not disclose information about the enforcement agencyas request to remove this video, it recently revealed in its Transparency Report how similar requests have been increasing in recent months.  

Googleas most recent TransparencyReport cited the following with respect to a petitioned video:

We received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove. Separately, we received requests from a different local law enforcement agency for removal of videos allegedly defaming law enforcement officials. We did not comply with those requests, which we have categorized in this Report as defamation requests.

In the report, Google stated that the request to remove content was one of thousands made by governments around the world, including requests from the Government of Canada.  Google stated that there have been 16 requests by the Government of Canada for the removal of content from Google services in the past year, 44% of which Google either removed fully or partially.  It additionally reported that amid increased government requests to remove content, Google continues to follow its company policy of hosting content, including videos containing police brutality, unless presented with judicial rulings for the removal of specific content.

Googleas decision not to remove content containing police brutality may be particularly relevant today, as the recent Occupy protests across North America have produced a growing number of online videos of police violence toward protestors.  A video surfaced recently that showed former Marine Scott Olsen being carried away from an OccupyOakland protest after being struck in the head by a tear gas canister, which left him in critical condition.  Footage of this incident posted on YouTube has in part led to rallying of the Occupy Wall Street for greater police accountability in dealing with the protestors.

As the Occupy movement spreads across Canada, Googleas decision to host videos of police interactions with protestors may prove instrumental in promoting police accountability and transparency during these growing protests.  It will be interesting to see whether Google will maintain their policy of hosting sensitive content as government requests for their removal continue to increase.  It will also be interesting to see whether the Canadian parliament and/or judiciary addresses this issue in the future, and whether law will be enacted to facilitate the removal of content including police brutality. 
                 
Posted by Ben Dillon (Windsor Law  I)

Case Highlights the Need to Break the aCode of Silencea Amongst Police Officers

Justice Nancy Backhouse, of the Ontario Superior Court, recently had strong words about the unconstitutional search and inaccurate testimony of police constable Ido Sukman during an application to exclude physical evidence of drug possession in R v Le, 2011 ONSC 6276.  Notably, Justice Backhouse accepted the contradicting evidence of Sukmanas partner, P.C. Yang, in finding a deliberate breach of the accusedas Charter rights athat cannot be tolerated because the police conduct brings the administration of justice into disreputea.

After evaluating the contradictory evidence of P.C. Sukman and P.C. Yang, Justice Backhouse critically commented that aP.C. Sukmanas evidence does not make any sense. I had grave concerns about his evidence as he testified.  His version of the facts strikes me as highly improbable and inconsistent with the usual practice.a

Unfortunately, the position taken by the Crown in this case was that the version of events given by P.C. Yang should be found unreliable and rejected.  Justice Backhouse disagreed, instead finding that P.C. Yangas evidence provided confirmation on key factual points in the case: the reason the accused was stopped was not because of his tail lights, but because P.C. Sukman believed that the owner of the vehicle was probably engaged in illicit drug activity, that P.C. Yang was able to see that there was nothing on the passenger seat of the accusedas vehicle, and that P.C. Sukman searched the accusedas vehicle before any drugs or drug paraphernalia were found.

There are two major issues of concern in the circumstances of this case: the illegal searches of Leas vehicle and person, and the untruthful evidence given by a police officer.  The illegal search is an issue individual to this case, for which the remedy was the judicial exclusion of the evidence.  However, the inaccurate testimony engenders different accountability issues, and while a court can offer strong words, and charges may follow in rare cases, the underlying systemic problems have not been addressed.

When a search has been found to be unlawful, the court has both a test to measure the conduct, and a remedy to ensure that the unlawful search does not taint the trial. This case, however, reveals symptoms of a larger and more systemic problem.  By accepting the contradictory evidence of P.C. Yang and so strongly pointing out the improbabilities of P.C. Sukmanas evidence, Justice Backhouse essentially held P.C. Sukmanas evidence to be false.  This is the aspect of the case that has sparked media response.  Toronto newspapers noted the case under headings such as aJudge Finds Cop Falsified Evidencea (http://thetorontopost.com/news/judge-finds-cop-falsified-evidence/) and commentary websites bore headlines such as aCanada Judge Tosses Case, Rules Police Made Facts Upa (http://www.officer.com/news/10443994/canada-judge-tosses-case-rules-police-made-facts-up).  The problem of false evidence and the need for police officers to report on each other in such situations raises concerns with police culture and accountability.

The testimony given by P.C. Yang played an essential part in bringing the inaccurate testimony of P.C. Sukman to light.  The willingness and ability to report and contradict dishonest behavior by other officers is an important function of accountability, yet it is not behavior that has typically been associated with police culture.  This begs the question: in cases where the accusedas rights have been breached and inaccurate facts have been used to support the evidence, can the justice system and the public trust that officers will report on or give testimony contradictory to that of another officer? Reports on police culture suggest that such action would likely be met with resistance and discouragement from other members of the police force.

One such report, generated from the combined initiatives of the RCMP Research and Evaluation Branch and the Community, Contract and Aboriginal Policing Services Directorate (http://dsp-psd.pwgsc.gc.ca/Collection/PS64-27-2006E.pdf) talks about athe Blue Code of Silencea embedded in police subculture, along with the pressure not to breach it.  The report states that athe code of silence...it is argued, is a part of police socialization [and] imposes negative consequences for those who break ita (page 7 of the report).  In a sample of police officers in the United States, questions relating to the code of silence found that 64.7% of officers who report incidents of misconduct are likely to be given the cold shoulder by fellow officers (page 8 of the report).   One U.S. report notes that police culture is not only characterized by silence about misconduct, but also aunquestioned loyalty to other officersa (page 12 of the report).  Because this code of silence was broken in R. v. Le, crucial findings were made with regard to unlawful police conduct in obtaining evidence against a member of the public. 

There is also something troubling about the Crownas decision in this case, in the face of conflicting police accounts, to urge the court to accept the testimony that would bolster its own case and entirely reject the sworn testimony of another police officer that would support finding an unreasonable search and inaccurate testimony. Such a position would seem to be at odds with the role of the Crown to be an impartial Minister of Justice.

Would some effort in fact-checking and investigation on the part of the Crown have resolved or shed light on the truth behind some of the evidentiary inconsistencies?  With regard to the issue of police misconduct and the surrounding culture of silence, the question becomes: beyond strong words, excluding evidence or staying charges, do the courts have a remedy at their disposal to discourage dishonest behavior on the part of the police, or in any way change the culture that enables it?  

Posted by Laura Burkitt (Windsor Law III)  

Windsor Mayor Concerned About Police Brutality Lawsuit and Claims of a Cover-Up

This week the Windsor Star reported that Windsor Mayor Eddie Francis has publicly expressed his concerns about the integrity and accountability of the Windsor Police Force in response to allegations that officers attempted to cover up the brutal assault of local doctor Tyceer Abouhassan. When asked about the allegations contained in a $14.2 million lawsuit filed in the Superior Court on September 29, Mayor Francis replied, aI am not happya and aI would share the fact that I do have concernsa. Abouhassan claims that on April 22, 2010, he was minding his own business while jogging from the train station to the Jackson Park Medical Centre in Windsor when he was approached by a man that later turned out to be Det. David Van Buskirk. The officer was not dressed in uniform and at no time identified himself as a police officer.

After accusing Abouhassan of harassing a young girl in the park, Van Buskirk apparently proceeded to break Abouhassanas nose, detach his retina and give the doctor a concussion. The Statement of Claim states that when Abouhassan regained consciousness, he overheard Van Buskirk reporting that an officer had been assaulted and requesting a prisoner transport vehicle and ambulance. Van Buskirk then searched Abouhassanas back-pack and continued to detain the doctor before an ambulance arrived to transport him to the emergency room at Hotel Dieu Grace Hospital.

The lawsuit asserts that after Van Buskirk realized his mistake about the culpritas identity, he knowingly provided a false occurrence report to justify the illegal assault, detention and search of Dr. Abouhassan and that other officers backed up Van Buskirkas claim that Abouhassan attacked him first. However, video surveillance and eye-witness accounts corroborated Abouhassanas description. Additionally, two Windsor Police Officers, Det. Sgt. Patrick Keane and Det. Sgt. Paul Bridgeman, contacted Abouhassanas criminal lawyer on separate occasions in an attempt to broker a deal to withdraw the assault charge against Abouhassan if he did not file a formal complaint with the Office of the Independent Police Review Director (OIPRD) or pursue criminal charges against Van Buskirk. After Abouhassan refused the two offers to broker a deal, an Information was sworn against him by Det. Kent McMillan.

The Statement of Claim reports that Abouhassan subsequently filed complaints with the OIPRD alleging misconduct on the part of Van Buskirk, Bridgeman and Keane, and that ultimately the OIPRD made findings against Van Buskirk for discreditable conduct, excessive use of force and unlawful arrest and deceit under the Police Services Act. McMillan was found to have committed discreditable conduct and deceit, and Bridgeman discreditable conduct and neglect of duty. 

Mayor Francis, who heads the Police Services Board, indicated amany people are forming their opinions and are concerneda about what occurred. However, the Mayor could not comment more than that until the matter makes its way through the courts.

Van Buskirk was charged criminally with assault causing bodily harm and public mischief.  Meanwhile, the charges against Abouhassan were stayed by the Crown on June 15, 2010. Police Chief Gary Smith, who is also named in the lawsuit, said on Thursday that the Force ahas been as open and honest as possiblea since the allegations arose. While he too is concerned about the Forceas reputation in light of these events, the Chief urged the public not to lose confidence in or pass judgment on the rest of the police service abased on the actions of somea.

Posted by Jeremy Tatum (Windsor Law III)

Police Too Quick To Taser?

On April 7, 2011, an eleven year-old boy was tasered by Prince George (BC) RCMP following his suspected involvement in the stabbing of a 37 year-old man at a group home. Immediately following the incident, little was known or released about what prompted the police to taser the boy. Six months later, it was discovered that the boy in fact suffered from a heart condition, bipolar disorder and hearing impairment. During the incident, the RCMP was negotiating with the boy to come out. The boy appeared in a second-story window with what appeared to be a knife. He ran the object along his sweatshirt, arms and hands. The RCMP then witnessed the boy make cross-like gestures, which stood as a last straw for the RCMP before they decided to taser him when he came out. The boy negotiated for some clothes and when he came out, he was tasered. It was later seen that the boy did not have a knife in his hands, but rather, a pen. 

At first glance, it seems that the RCMP were out-negotiated by an 11 year-old boy who faced mental health problems. Rather than calmly or alternatively trying to negotiate with the boy, or perhaps find out more about his situation, the RCMP resorted quickly to using a taser. It is understandable that the RCMP were trying to protect the boy from himself and from themselves. However, by using a taser so quickly, they failed to consider the potentially fatal side effects, in particular on the boyas heart condition. The RCMP also failed to verify whether the boy in fact was holding a weapon at all before deciding to taser him.  It begs the question of whether this 11 year-old boy really posed a threat to the RCMP at all.

Given the boyas mental health condition, of notable interest would be to look into whether the RCMP has been provided with adequate training in handling situations of this nature. It is possible that the RCMP misinterpreted the boyas signals or the boy was unable to comprehend the RCMP officersa demands. Would this then be sufficient grounds for the RCMP officers to resort to tasering the 11 year-old boy? It is tough to see in any situation involving an 11 year-old why the RCMP would resort to tasering. It is even more compelling in this situation where the boy faced several mental health disorders.

An investigation was launched into the conduct of the Prince George RCMP officers involved. In charge of the investigation was the West Vancouver Police Department (WVPD), headed by Chief Constable Peter Lepine, a former RCMP officer. Of particular concern here is who is acting as a check on the power of the RCMP? From what it seems, the WVPD is not an entirely independent unit, and thus cannot really provide an aobjectivea inquiry into the RCMP. The issue of tasering is already contentious a can the RCMP be held truly accountable for their actions if investigated by the WVPD?

In the end, it was declared by the WVPD that the conduct of the Prince George RCMP did not violate the Criminal Code. However, few details of how this decision was made were given. Consequently, how can we as the public be satisfied with the results of this investigation? Although the initial story caused mass public discourse and debate, the results of the inquiry into the RCMP has seemed to go undetected. The detailed considerations that went into the WVPD investigation were not made transparent to the public. The length of time between when the incident occurred, and when more details were provided (6 months later) seems entirely unreasonable and did not allow for the public to remain informed.    

It is also important to note that separate investigations by independent groups were also launched, including that of the Commission for Public Complaints Against the RCMP, and one by well-known BC Representative for Child and Youth, Mary Turpel-Lafond working alongside the BC Ministry of Child and Family Development. Results of these investigations have yet to be released but perhaps when they are, they will shed a more objective light on the situation.

Posted by Audrey Wong (Windsor Law)

Police Autism Database a Step in the Right Direction

The Windsor police have partnered with Autism Services Inc. to create an online registry that will help give quick access to detailed information about how to deal with individuals with Autism Spectrum Disorder (ASD) during emergencies. It is modeled after the registry that was created in Ottawa in 2010 and is to be updated annually in order to keep the information current.

People living with an ASD develop differently from others in the areas of motor, language, cognitive and social skills. Each person with an ASD is unique and will have different abilities but often there are problems communicating and ritualistic actions involved with an ASD. This means that police officers may encounter someone displaying erratic, repetitive behaviour that seemingly refuses to listen or communicate with them. This has caused huge problems in how these officers choose to handle the situation, especially if they do not recognize these as signs of autism. With the creation of the registry, residents that live within the Windsor policing jurisdiction can fill out forms that can be used to inform police how their child communicates, what their particular triggers are, and how best to approach them in order to get them to co-operate.
                                                                                                        
This is particularly important for use with the number of children with ASD that wander off and need police assistance but it is also important given situations that have been seen in the media lately. In August of this year, Toronto police became involved with a situation with a 9-year old boy with ASD in a daycare centre because he had become uncontrollable in a classroom. After ordering the boy to lie down on the ground, which he complied with, they handcuffed him until he calmed down. Many saw this as a highly inappropriate response. Given the fact that children with autism remember patterns so precisely, a damaging interaction with police like this can traumatize them and affect any interactions with police officers in the future. It is uncertain whether a registry would have helped in the situation. Likely, even more in depth training is required for police officers in dealing with people with ASD and other similar disorders.

In light of these events, should every police service be required to have an Autism Registry? Is this enough or should there be more detailed mandatory training involved?

Posted by Melissa Crowley (Windsor Law II)

Windsor Police Service Strip Search Practice aTroublesa Court

Ten years ago the Supreme Court of Canada overturned the drug conviction of Ian Golden and set out constitutional limits and guidelines on the ability of the police to strip search suspects. Last week, Justice Renee Pomerance, of the Windsor Superior Court of Justice, heard adisturbinga evidence that Windsor Police are strip searching approximately 50 percent of those arrested on drug charges. However, no records are kept of the number of searches where no evidence is found and so it is hard to know the actual number and who is most likely to be searched and under what circumstances. This troubled Justice Pomerance as well as the fact that there is no prior authorization from a senior officer practice. 

In R. v. Golden, the Court confirmed that reasonable and probable grounds to arrest do not ipso facto confer automatic authority for the police to carry out a strip search. Further,
           
            99        In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detaineeas possession or evidence related to the reason for the arrest.  [a|] [P]olice must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest.  Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter.

114      Where the circumstances of a search require the seizure of material located in or near a body cavity, the individual being searched should be given the opportunity to remove the material himself or the advice and assistance of a trained medical professional should be sought to ensure that the material can be safely removed. In this case, the plastic wrap was located between the appellantas buttocks. The police had no way of knowing whether it was physically lodged inside him in such a way that it could not be safely retrieved without medical intervention. Nevertheless, the arresting officers undertook to remove the package themselves, through physical coercion and forceful probing and tugging at the package, and by instructing the appellant to alet it outa and to arelaxa. The risk this presented to the appellantas health was made more acute by the fact that after the appellant accidentally defecated [a|]
116      We particularly disagree with the suggestion that an arrested personas non-cooperation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety.  If the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter rights.  Any application of force or violence must be both necessary and proportional in the specific circumstances.  In this case, the appellantas refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances.
Justice Pomerance was presiding over the Charter application of Bart Muller to exclude evidence, including 39.5 grams of crack, 23.7 grams of cocaine and 12 oxycondone tablets hidden in his buttocks, from his trial for three counts of possession for the purpose of trafficking. 

While the court ultimately found the evidence against Muller admissible because the police had reasonable grounds to strip search a for example, they were acting on the tips of two informants, money and paraphernalia were found on or close to Muller, and he was evasive with police, Justice Pomerance observed that the officersa failure to provide privacy and dignity was by "no means triviala.  Contrary to the guidelines in Golden, Muller was entirely naked, in less than private conditions and not given the opportunity to voluntarily remove the baggie when strip searched at the police station.  

However, Muller was not the only individual strip searched as a result of the police investigation. After Windsor Police obtained a warrant to search the Detroit Street apartment Muller was said to be occupying, three men and a woman visiting the property were taken into custody and strip searched. All were released without charges after no evidence was found on their person. Yet, as defence counsel discovered after requesting disclosure, no record of the strip searches could be found. A Windsor police officer had permitted the police video to be destroyed.

Justice Pomerance noted that the illegal searches of these citizens and failure to keep records of the incidents was both adisturbinga and aunacceptablea. Moreover, it gives the appearance that a adisproportionate number of strip searches are being carried out by the Windsor Police Servicea. Consequently, the court recommended that the Windsor Police Service revise its training procedures and strip search policy to conform to constitutional standards.

Windsor Mayor Eddie Francis indicated in an interview with The Windsor Star that he atake[s] the comments made by the court very seriouslya, and that he and the Windsor Police Services Board awill raise those issues and ask for a response.a

Of course, Windsor is not the only jurisdiction with evidence or reports indicating that the number of strip searches by police is sharply increasing.  According to the Toronto Star, Toronto Police Serviceas own statistics reveal that at least 60 percent of the 50,000 arrested in 2010 were strip searched, which represents a spike of 28 percent since 2001 where almost 21, 000 more arrests were made. Chief Bill Blair attributes the apparent influx to more detailed accounting of strip searches, and maintains that every situation is assessed on a case-by-case basis. Yet, the same statistics report that the Toronto police came up empty-handed in 70 percent of the strip searches performed in 2010.

Some, including John Sewell of the Toronto Police Accountability Coalition, intimate that the high percentage of searches and empty results suggests that ainherently humiliating and degradinga searches (Golden at paras. 89-90) are becoming routine and being done to abelittlea and ahumiliatea people, not for investigative purposes. Sewell suggests that if police are trained to and spend more time conducting better pat down or frisk searches to see if someone is hiding something in his or her underwear, there would be less need to proceed to level three strip and cavity searches. The Toronto Police Services Board has asked Chief Blair to prepare a report on the forceas policies and practices on searches and how they could be improved.

The recent high profile cases of Stacy Bonds, Sean Salvati, and David McPhail have also called into question police accountability and suggested that strip searches are being used to humiliate and intimidate. In March, Ontarioas Special Investigations Unit charged Sergeant Steve Desjourdy with sexual assault in connection with the cellblock strip search of Stacy Bonds.

McPhailas case made headlines in June when Justice June Maresca threw out breathalyzer evidence obtained after McPhail was arrested for driving while impaired by alcohol and over-80, and unnecessarily strip searched.  The explanation a police officer offered to the court for the strip search was that a cell phone was found in McPhailas shoe and there might be something else secreted on him. Again, no records were kept of the search, and no approval to strip search McPhail was sought from a staff sergeant. Ultimately, Justice Maresca found that the police conduct aboth in conducting the strip search and in attempting to hide it at triala made the seriousness of the state conduct and impact on the accuseda Charter protected rights aespecially egregiousa. After the evidence was excluded, McPhail was acquitted. A spokesperson for the Peel Police Service stated that the force will alook intoa the courtas findings of misconduct.

In spite of widespread calls for increased police training and reporting when it comes to conducting searches and the ensuing litigation that the taxpayer is left on the hook for ten years after guidelines were issued to the police and public, what should be done to streamline compliance and police accountability?

Posted by Jeremy Tatum (Windsor Law III)

Crown Withdraws Charges After Court Raises Concerns About Racial Profiling


Two victims of what one judge described as racial profiling are relieved that the Ottawa Crown Attorneyas Office exercised its discretion in withdrawing all charges during a preliminary hearing on June 23.

Jordan Noel, 22, and Loik St-Louis, 24, were stopped on Rideau and Waller streets in August 2010 while driving Noelas motheras Cadillac. According to St-Louis, the officer in charge, Constable Robin Ferrie, never advised the pair why they were being stopped or detained.

Provincial Court Judge Dianne Nicholas heard from Cst. Ferrie that the Cadillac was part of a random spot check under the Highway Traffic Act, but, when pressed by Justice Nicholas why he called for backup, Ferrie noted that the men were in a high drug area and alerted the officeras suspicion because they did not make eye contact with him as Ferrie drove by. Yet later in cross-examination Ferrie conceded that his investigation notes made no mention that not looking at him is what raised the officeras suspicion. Instead, the notes indicated that asuspicious males in a vehicle in a high drug areaa and atwo young males driving a Cadillaca were the reason for the stop.

Ferrie went on to testify that Noel nervously explained the vehicle belonged to his mother and, according to Ferrie, too promptly handed over his license and registration, casting further suspicion in the officeras mind that the vehicle might be stolen.

However, Justice Nicholas was quick to question that line of reasoning asking, ahow many white women do you stop in the market just because theyare driving a car? How many in the last month?a Ferrie was unable to provide the court with any estimate or example.  

Moreover, aBecause two black guys in a car donat look at you, youare calling for backup? [a|]Youare going to check whether he has permission from his mother to drive a car and two other police cars show up, like come on?a, asked Justice Nicholas.  Ferrie noted that it turned out Noelas mother had not known her son had taken the vehicle.

While the two continued to be detained and Ferrie conversed with Noelas mother using the number Noel provided the officer, the two backup officers arrived on scene.  One discovered five grams of crack cocaine, thirteen grams of marijuana, a drug scale and approximately $1,685 in cash during a search of the vehicle. All items were seized and taken into property. The two were arrested, taken into police custody and formally charged. The cash would later go missing in the police evidence room, though Noel and St-Louis were repaid earlier this week.

In the landmark decision in R. v. Brown, Morden J.A., for the Ontario Court of Appeal, critically observed at paras. 8 and 44 that:

The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping. [a|] A racial profiling claim could rarely be proven by direct evidence. [a|] Accordingly, racial profiling [a|] must be done by inference drawn from circumstantial evidence.

The court went on to accept that a finding of racial profiling is capable of being supported where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why she or he singled out the accused person for attention.

With the charges facing Noel and St-Louis, although Justice Nicholas heard no direct evidence of racism on the part of Constable Ferrie, she inferred from the evidence before the court that it sounded like the two had been racially profiled.

Following the lunch recess when both parties returned to court, the prosecutor announced the Crown would be withdrawing all charges. aI think thatas an appropriate use of your discretiona, replied Justice Nicholas. 

Of note, the Crown Policy Manual requires that when considering whether or not to continue the prosecution of a charge, Crown counsel must determine if there is a reasonable prospect of conviction and, if so, whether it is in the public interest to continue or discontinue the prosecution

It would seem that having been alerted to some of the same concerns expressed by the court, Crown counsel was alive to his or her duty as a Minister of Justice to ensure that the criminal justice system operates fairly to all, including the accused, victims of crime and the public. (R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.); R. v. Cook (1997), 114 C.C.C. (3d) 481 (S.C.C.))

Posted by Jeremy Tatum (Windsor Law III)

Toronto Police Service Releases G20 Policing Review

On the first anniversary of the Toronto G-20 Summit, the Toronto Police Service released a 70-page aafter-actiona report into the policing of that weekend.

The report boasts of many successes, including ensuring the safety of the G20 summit delegates and security of the summit sites at all times, but also recognizes that lessons were learned about improving officer training to more efficiently respond to awidespread criminality and mass public disordera.Chief Blair also points out that the Toronto Police Service was given only asix months to plan for the largest security event in Canadian historya, and athere were no critical injuries or deaths during the G20 Summita. Although the report later reveals that of the 1118 people arrested, at least afive suffered injuries that they required to go to the hospitala.

The report provides an operational chronology into the related events, activities and peaceful and violent demonstrations in Toronto during June 18 a June 27 that the public may not be aware of and which explains some of the many individual arrests the police made. However, on the highly publicized mass akettlea or sweeping arrests that have been the subject of much media attention, legal actions and Charter challenges, Chief Blair highlights the need to improve training and communication during operations so that officers can amore effectively respond to criminal activity and public disordera at the investigative, arrest and processing stages. 

This likely comes in response to the fact that some prisoners went hours without food and water, and faced delays of up to 36 hours before being taken before a Justice of the Peace and speaking with a lawyer, which the report described as a abreakdown in communicationa.  The Toronto Star reported last Friday on the story of one man that was allegedly arrested in relation to the G20 and strip-searched.

Some, including well-known criminal and constitutional lawyer Clayton Ruby, have been quick to dispel time and training as justification for being unprepared and overburdened. aThey spent a billion dollars, it is not possible for them to be overwhelmed [a|] my daughter could do better.a

The Canadian Civil Liberties Association (CCLA), a national organization constituted to promote respect for and observance of fundamental human rights and civil liberties, describes the G20 as the dawning of a new era of policing techniques being foisted on the legal system and a atest of our accountability mechanisms, whether they work appropriately and whether they are sufficient. And they are not.a The CCLA argues that given the volume of identifiable police officers and forces involved in the G20, a single body is necessary to review their conduct and impose sanctions where appropriate. 

Chief Blairas report indicates that a108 officers have received disciplinary action for removal of identificationa and a1 officer was charged under the Criminal Code for Assault with a Weapona. Yet, the report does not disclose the nature of the disciplinary action and internal investigations the Toronto Police Serviceas Professional Standards Unit is managing or supporting.

While the report does include ten laudable recommendations for improving the Toronto Police Serviceas ability to police future large-scale events, the report does not address or answer many outstanding questions that linger after the G20. Improving communication within the Force and to the public, police training and policy will certainly help, but more will be required to ensure events do not repeat themselves and those guilty of wrongdoing are held accountable.

The apparent disregard of policies governing officer identification, use of force and searches during the G20 poses serious questions about how effective policy and deployment reform will really be in ensuring that the police arespect the democratic right of individuals to demonstratea and afreedoms of thought, belief, opinion, expression and peaceful assemblya.  For example, the report does not go on to clarify why protocol was not followed for the kettling containment technique, which requires that apersons not involved in the event must have both a route of egress from and the opportunity to leave the affected areaa.

The contention that mass arrests be undertaken to disperse crowds to prevent a small number of vandals breaching the peace is unlikely to pass constitutional scrutiny. Consequently, in a report entitled Caught in the Act, which was released in December 2010, Ontarioas Ombudsman Andre Marin labeled the G20 policing as athe most massive compromise of civil liberties in Canadian historya.

However, the Ombudsman also singled out Toronto Police, and the Chief in particular, for refusing to cooperate with his investigation into the asecreta Public Works Protection Act legislation and policing surrounding the G20 Summit. Now that Chief Blair and the Toronto Police Service have pledged to acooperate fullya with independent reviews by the Special Investigations Unit, Toronto Police Services Board, Office of the Independent Police Review Director and former Chief Justice Roy McMurtry on behalf of the Province of Ontario, it remains to be seen how that will help bring about reform in the aftermath of the G20 and lawsuits facing the Toronto Police Service.

Posted by Jeremy Tatum (Windsor Law III)

Testilying to secure a conviction

Recent cases involving fabricated evidence and ethical violations by police officers is giving cause to wonder, once again, if officers are going too far to get convictions. Last week Brampton Superior Court Judge Douglas Gray threw out the case of a man accused of 17 charges related to the prostitution of a 17-year-old girl. In R. v. Salmon, Justice Gray wrote that several Peel Region police officers fabricated evidence in an attempt to ensure a conviction against the accused.
It was suggested that the officers conferred with one another to make it appear as though the fake ID the girl used to work in sex clubs was found in the accusedas wallet. Other evidence produced at trial showed that the ID was actually turned over to the police at the station by the girl when she first arrived to make a complaint. If the ID had been found in the accusedas wallet it would have shown that he had a measure of control over the girl, which is essential for a conviction on several of the charges he faced.
Judge Gray singled out two of the officers pointing out that they had opportunity and motive for the falsification. Both had seen the accused charged with these offences before, only to have the counts stayed or dismissed. And both had ample opportunity to view and correct the incorrect evidence list but failed to do so.
While the Crown suggested that this was simply an error by an inexperienced officer who was overwhelmed, the Judge disagreed, concluding that this was deliberate and there was no available remedy short of a stay of proceedings that would be appropriate.
When is it all right for a police officer to incorrectly file evidence? Do we not expect officers who have completed training and begun work to be fully prepared regardless of how long they have been active? The ainexperienceda officer involved has been with the force for about 6 years, not exactly a veteran but certainly experienced enough to know that evidence must be logged accurately as to where and how it was recovered. In suggesting inexperience as a reason for this behaviour the Crown is failing to recognize the severity of the conduct and brushing it off as an excusable mistake.

Not just a awake-upa call for Quebec

The recent report on Racial Profiling and Systemic Discrimination of Racialized Youth by Quebecas Commission des Droits de la Personne et des Droits de la Jeunesse (Commission for Human Rights and the Rights of Youth) has received substantial praise from experts, authorities and community members since its release on March 25, 2011.

This report is the product of months of public hearings, at which seventy-five individuals, including researchers, community members, and representatives from various organizations and institutions, gave testimony, presented research, and offered analysis on racial profiling in Quebecas public services. The Commissionas purported aim in this fact-finding mission was to afind solutions, not assign guilta in regards to racial profiling in Quebecas Public Security Sector, Education Sector, and Youth Protection System.

In relation to the Public Security Sector, the Commission specifically recognized that anumerous studies have demonstrated that security forces, and notably the police, tend to scrutinize and suspect racialized minorities more often, without factual or valid grounds, and punish them disproportionately in the application of laws and by-lawsa[Report, p.10]. With this in mind, the Commission explored an impressively broad range of topics relating to racial profiling in the context of policing and public safety. Firstly, the Commission examined atargeted scrutiny of racialized minoritiesa, including: racial profiling in the context of the fight against criminality and street gangs, the fight against incivility and the discretionary application of municipal by-laws, under-protection of racialized persons by the police, recognition and prohibition of racial profiling in laws and policies, data collection, supervision of police actions, and partnerships and accountability; secondly, the Commission investigated arecourse available for citizensa, including: the Police Ethics Commissioneras system, Criminal Investigations of police incidents involving severe injuries or death.

Evidently, there is a great deal to be garnered from the Commissionas findings and 93 recommendations, which include asweeping changesa to the Quebec Charter of Rights, the Police Act, the police code of ethics and calls for more sensitivity training and an increase in the hiring of minorities.
Overall, this report is certainly deserving of all the accolades it has received and the Commission should be commended for this groundbreaking endeavour.

Whether the recommendations come to fruition, and lead to improved policy, procedures, and legislation is, however, an entirely different question. It is not clear whether this report, like most policy reports, will be a catalyst for significant reform and ultimately alter the behaviour of individuals. However, there is no question that the very existence of this report is a step in the right direction, as is the Commissionas realization that individuals who have experienced racial profiling want aan increase in societyas awareness of what they experience, along with an acknowledgement of the need for change and the implementation of concrete actionsa[Report, p.3].

It is imperative to recognize, however, that the Commissionas findings apply not only in Quebec; all of Canada stands to benefit from this report and all Canadians should take heed of the recommendations.

Specifically, all Canadians should take note of the Commissionas finding that there is a significant dearth of data on racial profiling, particularly in the Public Security Sector. According to the Commission, the Kingston Police Serviceas systemic data collection project is the only one of its kind. This fact is distressing. Without proper data to outline the nature and breadth of racial profiling as a problem, we cannot devise effective solutions; accurate data is crucial to all efforts to end racial profiling. Furthermore, as highlighted by former Kingston Police Chief W.J. Closs, data collection has many incidental benefits. Collecting data helps individual police officers develop to a aself-criticala attitude, which will enable them to better identify their own biases [Report, p. 37]. Given the high value of data collection, one can only hope municipal police services in Quebec, and across the country, follow the Commissionas recommendations and start collecting and publishing data on racial profiling.

Moreover, Canadians need to acknowledge that racial profiling affects a great many people in our society on a daily basis. The prevalence of racial profiling is clearly demonstrated throughout this report, and is most succinctly expressed in the reportas preface by a few choice words from a mother in Montreal, who states it is anormal to get pulled overa and she regularly warns her children to avoid the police. This motheras statements illustrate that racial profiling and, more broadly, discrimination on the basis of race, remain pressing issues for many Canadians.

Finally, it is important for all Canadians to recognize that ending racial profiling requires action be taken beyond the individual level. It is not enough to reprimand individuals after a complaint is filed, instead we must seek to prevent racial profiling before it occurs, and consequently systemic reform is essential.

The true impact of this report remains uncertain; it is unclear whether the Commissionas recommendations will receive due consideration in Quebec and throughout the country, or whether this report will simply gather dust on desks of civil servants. Whether the former or the latter occurs will depend to a large extent on the existence of progressive leadership within our public institutions. One can only hope that this report receives the consideration it deserves and the necessary reform follows; the development of policies, procedures and organizational structures that ensure all Canadians receive equal treatment when interacting with public services would certainly be worthy of praise.

Posted by Ashley Henbrey (Windsor Law II)

LEAP wins 2011 Student Social Justice Project of the Year


First human rights finding of Aboriginal profiling

In a landmark decision, the Ontario Human Rights Tribunal has concluded that the police treatment of Garry McKay during a bike and id check constituted racial profiling. Some of the relevant excerpts of the tribunal's decision include:

...

[2] The complainant, Garry McKay (aMcKaya or athe complainanta), self identifies as an Aboriginal man. He alleges that he was subjected to racially biased policing by the personal respondent, Christopher Fitkin (aFitkina or apersonal respondenta), a police officer with the Toronto Police Service. The Complaint stems from an incident in the early morning hours of July 9, 2003, when police stopped and questioned McKay and a friend while the two men were walking in a laneway. During the encounter, Fitkin investigated McKay and McKayas bike and, soon thereafter, arrested McKay for possession of stolen property (the bike). Eventually, McKay was released, however, McKay alleges that Fitkin threatened to re-arrest him if he did not produce a receipt for the bike. 

[3] The personal respondent submits that, given the time of the day and the laneway location, the police questioned McKay and his friend as a matter of routine patrol. McKay was initially arrested because a police records search indicated that a bike, bearing the same identification number as McKayas, was stolen. Fitkin later released McKay because further searches revealed the bike was reported stolen in Winnipeg.

...

Summary of Prima Facie Findings
[160] In summary, the evidence indicates that Fitkinas instant distrust of McKay exerted a powerful hold over how the encounter evolved, and led Fitkin to arrest McKay for the wrong bike. In particular, it appears that Fitkinas heightened suspicions derailed consideration of the available information that substantiated McKayas explanation and established that McKayas bike was not the reported stolen bike. I find that Fitkin hastily arrested McKay based on erroneous and deficient information. I also find that McKay was required, despite being released, to submit proof of the bike receipt. I further find that the officers undertook unnecessary and multiple criminal records searches of McKay post release.

[161] I conclude Fitkinas investigation and the arrest were shaped by negative stereotypes of Aboriginal people being untrustworthy and involved in criminal activity. I reach this conclusion based on the specific and overall circumstances of the case against the backdrop of the social context evidence confirming the pervasive negative stereotypes about Aboriginal people lacking credibility and prone to criminality. See Williams. I am persuaded that, taken as a whole and/or at the individual stages of the encounter, there is a prima facie case that the interactions between Fitkin and McKay were permeated by racial bias and stereotyping, now necessitating an explanation from the respondent.

[162] I accept that McKayas perception that he was subjected to unfair treatment and was unduly scrutinized. I found McKay to be a respectful and sincere witness. He provided his testimony in a clear, honest manner, and he had a reasonably good memory of the alleged events, which, based on his evidence, clearly affected him. I accept that McKay felt especially vulnerable and targeted because of the arrest and his fear of re-arrest.

...

CONCLUSION

[201] To sum up, I reject the personal respondentas explanations and conclude that Fitkin treated McKay in a racially biased manner because of the following factors:

aC/ Fitkinas instantaneous disbelief of McKayas explanation of his presence in the laneway;
aC/ Fitkinas disregard of the fact that Mack and the flyers corroborated McKayas explanation and his interpretation of flyer delivery as a good cover story;
aC/ Despite CPIC clearance, Fitkinas further investigation of McKay on what was effectively a hunch;
aC/ Fitkinas investigation was imbued with unfounded and heightened suspicions;
aC/ Fitkinas discounting of McKayas assertion of ownership and details of the bike store demonstrated a closed mind;
aC/ Fitkin disregard of the bikeas actual blue colour and rationalization of the colour discrepancy to support his
suspicions disconfirming McKayas ownership of the bike;
aC/ Fitkinas acceptance of one out of two possible number matches as a sufficient basis to arrest McKay;
aC/ Fitkinas indifference of, and failure to, verify the bikeas speed;
aC/ Fitkinas hasty arrest of McKay;
aC/ Fitkinas requirement that McKay provide proof of the receipt after the release; and
aC/ The multiple criminal records searches of McKay after release.

[202] In conclusion, I find that the complainantas race was a factor in his arrest, and that the personal respondentas treatment of him was influence by an underlying racial bias, which shifted the encounter from a routine patrol stop to an incident of racial discrimination.

[203] The hearing was bifurcated and, as such, the issue of Board liability and remedies remain outstanding. 

Penning an injustice for those who seek to hold police accountable

On September 27, 2010, the Ontario Court of Appeal ruled in Penner v. Niagara (Police Services Board) that Wayne Penneras civil claim for damages against two police officers was barred by the application of the issue estoppel branch of the res judicata doctrine as the issue had already been litigated in the context of a police disciplinary hearing.  This 2010 decision from the Court of Appeal seemingly brought an end to Wayne Penneras attempt to hold two police officers accountable for their alleged misconduct that occurred in 2003 at the Ontario Court of Justice in St. Catherines. 

The Facts
On January 28, 2003, Wayne Penner was sitting in the body of the courtroom where his wife was defending herself against a traffic charge that she faced pursuant to the Highway Traffic Act.  Officer Parker was on the stand being cross-examined by Mr. Penneras wife.  During the course of the cross-examination, Mr. Penner was alleged to be making achirpinga noises which werenat loud enough to be caught on the court recording devices, but were nonetheless disturbing to the Prosecutor and Court Officer. Upon the completion of his evidence, Officer Parker sat in the vicinity of Wayne and Officer Koscinski, who was in Court on an unrelated matter. At that point, Officer Parker turned to Wayne and told him that he could or would be arrested.  Mr. Penner became upset and began complaining loudly that Officer Parker had threatened to arrest him (and this was caught on the court recording device).  The Prosecutor asked the presiding Justice of the Peace to consider removing Mr. Penner from the courtroom.  The Justice of the Peace never made this order. 

Shortly thereafter, while Mr. Penneras wife was being sworn in, the Court Officer ordered Mr. Penner out of the courtroom.  Officer Parker immediately rose and put his hands on Mr. Penner, directing him to get out.  Mr. Penner pulled away.  At this point Officer Parker, with the aid of Officer Koscinski, placed Mr. Penner under arrest.  They dragged Mr. Penner out of the courtroom and delivered empty hand and knee strikes to subdue him. Of note is that the presiding Justice of the Peace fled the Courtroom and asked the clerk of the court to call 9-1-1. 

Mr. Penner was taken to the station where he was booked, strip-searched and charged with causing a disturbance, breach of probation, and resisting arrest.  Upon being taken to the hospital, Mr. Penner was observed to be unsteady on his feet.  He had a black eye, scrapes, sore ribs, a sore elbow, a bruised knee, and a sore wrist.  Mr. Penneras wife took photographs of the injuries.  All charges against Mr. Penner were subsequently withdrawn by the Crown and Mr. Penner pursued a public complaint against the two officers pursuant to the former Part V of the Police Services Act.

The Disciplinary Proceedings
            Under the former Part V procedures which have since been altered by the establishment of the Office of the Independent Police Review Director (aOIPRDa), the Chief of Police screened the complaint and determined that the matter warranted proceeding to a disciplinary hearing.  The hearing was presided over by a Hearing Officer who is appointed by the Chief and who in this case, as in most cases, was a retired Police Superintendant.  The police prosecutor appointed by the Chief in this case, as in most cases, was a senior officer from the same police force of equal or higher rank than the officers charged. Officers Parker and Koscinski were charged with two offences pursuant to the Police Services Act: 1) without good and sufficient reason making an unlawful or unnecessary arrest, and 2) using unnecessary force against a prisoner.  

            The disciplinary hearing took place over several days during which time 13 witnesses were called and 32 exhibits were filed. The key issue that the Hearing Officer needed to decide was whether the courtroom was a apublic placea such that officers had authority to arrest a citizen for causing a public disturbance in a courtroom that was being presided over by a Justice of the Peace.  A legal opinion was sought by the Hearing Officer on the issue.  On the basis of this opinion, the Hearing Officer concluded that the courtroom was a public place and that the officers had the right to arrest a citizen for causing a public disturbance.  Since they had lawful authority for the arrest and Mr. Penner was actively resisting, and since the officers used appropriate use of force techniques, the officers were cleared of any wrongdoing. 

The Disciplinary Appeal
            Unsatisfied with the result, Mr. Penner appealed, as of right, to the Ontario Civilian Police Commission (aOCPCa).  The Commission reversed the Hearing Officeras decision and imposed discipline of four days lost pay for Officer Parker and two days lost pay for Officer Koscinski.  The Commission did not find any authority under the Police Services Act to order the officers to make a public apology to Mr. Penner, as he had requested in his asubmissionsa on the appropriate penalty.  

In reaching this result, the Commission held that the Hearing Officer erred in failing to decide whether the powers of the Justice of the Peace in maintaining order within their courtroom trumped the powers of the police officers to affect an arrest for causing a public disturbance within the courtroom. After consulting the relevant authorities, the Commission concluded that the officers do have authority to arrest for causing a public disturbance in a courtroom but aabsent either a clear and present threat or direction by the Court, we believe that such authority is superseded by the courtas power to deal with disruptive behaviour falling under the broad definition of contempt.a In reaching this conclusion, the Commission made reference to the fact that the police officers did not give Mr. Penner an opportunity to leave the courtroom voluntarily upon being instructed to do so by the Court Officer before they laid their hands on him. Accordingly, the Hearing Officeras decision was reversed and the officers were found guilty of misconduct.

The Aftermath
            It is at this point that things become troubling on many different levels.  The officers applied for judicial review of the Commissionas decision.  The Divisional Court held that the Commission erred by casting doubt on some of the findings of fact made by the Hearing Officer and by requiring the Hearing Officer to resolve the issue of the powers of the Justice of the Peace to control the proceedings.  As a result, the court quashed the decision of the Commission and restored the decision of the Hearing Officer.

            Mr. Penner was not represented at the disciplinary hearing, the OCPC appeal, or the judicial review application, nor did it appear that he made any meaningful submissions at any stage of the proceedings, and yet the Superior Court decided to order costs against him in the amount of $7,500. How can the court justify ordering costs against an unrepresented party for a decision reached by the OCPC on their own review of the record? As he was unable to hold the officers accountable through the police complaints process under the Police Services Act, Mr. Penner attempted to hold them accountable through a civil action for damages.  This, as it turned out, was a costly decision.

The Civil Action
            Mr. Penner filed a civil claim against the two officers as well as the Niagara Regional Police Services Board alleging unlawful arrest, unnecessary use of force during and after the arrest, false imprisonment, and malicious prosecution.  All of his claims were struck on the basis of issue estoppel at the Divisional Court in an unreported judgment.  The defendants were awarded costs in the amount of $10,353.  Mr. Penner appealed this decision to the Court of Appeal where his appeal was dismissed.

            In the course of dismissing his appeal, the Court of Appeal applied the three-prong test for issue estoppel.  For the test to be met, the respondent police officers had to show that: 1. The same question was decided in the disciplinary proceedings; 2. The judicial decision said to create the estoppel is final (which Mr. Penner conceded); and, 3. The parties, or their privies, to the judicial decision are the same persons as the parties, or their privies, to the proceedings in which the estoppel is raised.

Even if all three prongs were met, the Court still had a residual discretion to not apply it if to do so would be unfair or work an injustice. 

The Court of Appeal Decision
            The first step of the test was met because the questions of lawfulness of the arrest and unnecessary use of force were already decided adversely to Mr. Penner at the disciplinary hearing.  That decision was final as Mr. Penner did not appeal the judicial review decision by the Divisional Court (although he unsuccessfully sought leave to appeal the costs order).  So the only real issue that the Court of Appeal had to decide was whether the parties were the same, and if they were, whether applying issue estoppel to bar the claim would be unfair or work an injustice.  The Court concluded that the parties were the same and the bar would not work an injustice.

            Leaving aside the application of the issue estoppel, there was an element of unfairness at play here. Mr. Penner won his appeal before the OCPC. The officers decided to judicially review this decision and were successful.  At the end of that proceeding, Mr. Penner was stuck with a $7,500 bill. Undeterred by the financial burden in his quest for some form of police accountability and justice, Mr. Penner finally decided to hire counsel to represent him in a civil claim against the officers and NRPS.  He lost again in the Court of Appeal and now has to pay the officersa legal fees of $17, 855 for not being successful on the motion or at the Court of Appeal. 

            While the Courtas analysis of the asame partiesa branch of the test is troubling, it is nonetheless an accurate analysis of the statutory context as applied to the facts of the case.  Mr. Penner had party status at the disciplinary hearing by operation of (then) s.69(3) of the Police Services Act, and he took advantage of that status as he atestified, cross-examined witnesses and made submissions on the legal issuesa.  How effective he was at any of these things would involve speculation as the record of the disciplinary hearing is not publicly available.  Whatas troubling is that the Court says that while he could have retained counsel, he chose not to.  This ignores the economic realities of retaining counsel, especially in matters where your liberty is not at stake and where you have no prospects of financial gain.

            Having established that all of the branches of issue estoppel have been met, the Court then turned to considering whether they should exercise their residual discretion to not apply the doctrine if it would cause an unfairness or injustice.  The court outlined two factors which favoured Mr. Penner, and four factors which favoured not exercising this discretion.  The court acknowledged that itas not a simple mathematical calculation at this stage, but a qualitative assessment of the relevant considerations.  One of the relevant considerations that the court identified a the different purposes of the two proceedings - ought to have been determinative.

            The court accepted that the disciplinary hearing bears resemblance to an employer/employee grievance.  This is an apt observation, especially in light of the fact that the Chief of Police is the one who brings the matter forward and assigns a Hearing Officer and a prosecutor for the proceeding.  Furthermore, the remedial options available in the event of a misconduct finding are limited to affecting the officersa employment with the police service.  Had the Professional Standards branch of the police force discovered the alleged misconduct through their own investigation instead of being alerted to the issue by a complainant, the officers would have faced the exact same procedures and Mr. Penner would not have had party status at the hearing. 

In the civil action, Mr. Penner sought financial compensation for the officersa alleged misconduct.  The Court accepted that the legislature didnat intend to foreclose the civil action simply because a complaint was filed under the Police Services Act, and yet this is exactly the result that this decision achieved.  The different purposes behind the disciplinary hearing and the civil action ought to have been determinative at this stage.  Mr. Penner did not stand to benefit financially from any finding of misconduct at the disciplinary hearing even though the Court alludes to issue estoppel being a double-edged sword where a finding adverse to the officers would have considerably aided Mr. Penner in his civil claim. 

But that begs the question. Why would a complainant turn to the public complaint process under the Police Services Act and have the issue prosecuted by a police officer from the same force and adjudicated by a police superintendant appointed by the Chief when he can have the matter adjudicated by a judge?  From a complainantas perspective, the Court of Appeal seems to have turned the issue into a zero-sum game: either you seek financial compensation for officersa misconduct by way of a civil action or you seek to have them disciplined pursuant to the procedures outlined in the Police Services Act.  These two remedies should not be mutually exclusive and yet with the limitation period for public complaints under the Police Services Act being set at six months, it seems that the practical reality is that they are mutually exclusive.  This injustice/unfairness should have been sufficient to enable the Court to exercise their discretion in not applying issue estoppel.    

Questions to Ponder
Mr. Penner has sought leave to appeal to the Supreme Court of Canada. If the Supreme Court decides that the Ontario Court of Appeal was right or denies leave to appeal, what can be done about the implications of that decision?  Itas important to keep in mind that the Police Services Act has been amended when the OIPRD was established in the fall of 2008.  While this represents significant reform in terms of oversight of the public complaints process, it arguably does not affect the impact of this decision as the complainant still has party status at the disciplinary proceeding, the OIPRD does not act as agent or counsel for the complainant, and the complainant needs consent from the OIPRD to withdraw a complaint.  This is assuming that the complaint makes it to the hearing stage by passing the afrivolous, vexatious, bad faitha stage as well as the aunsubstantiateda option available to the Chief after conducting an investigation.

The impact of the Court of Appeal decision is that a civilian who seeks monetary damages due to a police officeras misconduct which does not rise to the level of falling within the Special Investigations Unitas mandate of resulting in aserious bodily harm or deatha should NEVER consider filing a public complaint through the OIPRD.  If they choose that route and a former Superintendant decides that the misconduct is not proven on aclear and convincing evidencea by a police officer from the same division of equal or higher rank appointed by the Chief, then their civil claim will be barred by operation of issue estoppel.  But Wayne Penner didnat seek monetary damages.  When he was wronged, he just sought a apublic apologya which wasnat even one of the disciplinary measures available under the Police Services Act.  Once he was deprived of any meaningful measure of accountability through the public complaints route, he chose to seek redress through the civil avenue.  This avenue just turned out to be extremely frustrating and costly.

What do you think about the implications of the Court of Appeal decision?  In light of Professor Futtermanas discussion at the LEAP Conference last week about the potential of law school clinics, do you think there is a role for law school clinics around the province in providing legal assistance to complainants in police disciplinary hearings?  Since Legal Aid Ontario funding for a complainant in a disciplinary hearing is out of the question, do you think the Court of Appeal decision effectively precludes a complainant from taking advantage of their party status at the disciplinary hearing in any meaningful way if they cannot afford to hire a lawyer?  Should the Police Services Act be amended to exclude the complainant as a party and reduce their role to a witness, similar to the role that complainants play in a criminal trial?

Posted by Vlatko Karadzic (Windsor Law III)

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.

Recruiting Female Police Officers

A BBC article published last week reported that the number of female police officers in Scotland is at a record high. This news comes as a surprise considering that in 2004, Scotland was behind the rest of Britain, with only two women in senior chief officer ranks, and with no women above chief inspector level. Fast forward eight years to 2011. Within the countryas eight police forces, women now account for more than one in four (26.8%) of the entire police workforce, and two of the police forces currently have women at the helm.

It seems that the police forces listened to the working groups such as the Womenas Development Forum in 2004, to find out how they could improve in terms of recruitment and retention. Female officers were demanding greater flexibility and a better work/life balance, and wanted their concerns about discrimination against part -time staff (mostly women) addressed.

In Canada, the number of police officers has increased from approximately 56,000 in 2005 to over 69,000 in 2010. The percentage of female officers has also increased by 5.5% since 2000, to 19.2% of the police force in 2010 (Stats Can, 2010). Quebec and British Columbia lead the way with the highest percentage of female officers amongst the provinces, at 23% and 21% respectively (Stat Can, 2010).

The percentage of women in senior ranks continued to increase in 2010, with females representing 8.7% of senior officers (up 3.2% since 2005) and 15.2% of non-commissioned officers (up 5.5% since 2005). The percentage of female constables has remained close to 21% since 2005 (Stat Can, 2010).

Commonly identified advantages to having more female officers have been used to aconvincea police forces to hire more female officers. Some of the benefits include: bringing a different style of policing that uses less physical force; possessing better communication skills; facilitating better cooperation and trust with civilians; helping to change the male-dominated atmosphere and climate in law enforcement agencies; and helping to change policies and procedures that benefit both male and female officers.

Similar to discussions about increasing the number of racialized and Aboriginal persons and persons with disabilities in the workplace, a balance must be struck between effective hiring and retention, and tokenization. Simply putting more (fill in the blank) into a workplace cannot fix the culture of the organization, or the public perception of that system or institution. There must be a concerted effort on behalf of the agency to put systems in place that will ensure retention and promotion is just as important as recruitment.

In law enforcement, programs, policies and procedures that create more flexible work hours, more mentoring opportunities, stricter internal policies against gender discrimination and sexual harassment, and clear accountability mechanisms, will help to retain more women in the workforce.

Ensuring that promotional opportunities are available just as readily to female constables as they are to male constables is also important. This allows female constables, and the public at large, to see that becoming a female in a higher rank within a law enforcement agency is possible and can be achieved.

Racialized women face additional difficulties based on the intersection of sexism and racism in law enforcement a this is true for other intersectional identities such as ability, sexual orientation/identification, religion, age, etc.

Perhaps resources spent on hiring should not be increased, but rather they should be strategically spent on ensuring the culture of law enforcement agencies is not just tolerant towards female officers, but welcoming and encouraging of a higher percentage of female officers. Employees need to believe that the agency completely abuys-ina to the benefits of having more (fill in the blank) officers.

However, this all begs the question of why in a time of budget cuts a specifically to social assistance, social services, school programming, etc. a are we hiring more police officers in general? Has the increase of female officers had an effect on police accountability?

Posted by Nana Yanful (Windsor Law I)

FTC Releases New Rule Provisions That Expand Company Responsibilities Under The CAN-SPAM Act

On Monday, May 12, 2008, the Federal Trade Commission (aFTCa) released a several new rules under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (aCAN-SPAM Acta or aActa). The Act and the implementing rules establish standards for sending commercial email messages.

The new rules stem from two rulemaking proceedings and are intended to clarify the existing requirements as follows: :

(1) add a definition of the term apersona to clarify that CAN-SPAMas obligations are not limited to natural persons;
(2) modify the definition of the term asendera such that when multiple partiesa products and services are promoted, it is easier to determine which entity is responsible for CAN-SPAM compliance;
(3) clarify that a sender may satisfy the avalid physical postal addressa by using a registered post office box or private mail box established under U.S. Postal Service regulations; and
(4) clarify that email recipients who wish to opt-out from receiving future email messages cannot be required to pay a fee, provide any information in addition to their email address and opt-out preferences, or otherwise be required to take any steps other than sending a reply email or visiting a single webpage.

The FTC also released a Statement of Business and Purpose (SBP), which addresses several topics that were addressed in the rulemaking proceeding but that are not subject to new rules. For example, the FTC declined to alter the length of time in which a sender may honor an opt-out request. The FTC also declined to expand the statutory definition beyond the five categories of atransactionala or arelationshipa services it exempts from the CAN-SPAM Actas requirements, as codified at 16 C.F.R. ASS 316.2(o).

These rules have the potential to promote greater marketing flexibility as they preserve the ability of entities to jointly and efficiently market products and services through commercial and promotional email. However, entities must be careful to understand the responsibilities that ensue from classification as a asendera when such marketing endeavors are pursued.

Leased Access Order Imposes Significant Regulatory Burdens on Cable Providers

On November 27, 2007, the Federal Communications Commission (aCommissiona or aFCCa) released an Order and Further Notice of Proposed Rulemaking in its Leased Access Proceeding (aFNPRMa). The Order was released on February 1, 2008.

In the Report and Order, the Commission modified its leased access rules which require cable operators to set aside channel capacity for commercial use by unaffiliated video programmers. Specifically, ASS 612 of the Communications Act authorizes the Commission to promulgate leased access rules to promote diversity of programming at reasonable terms and conditions. In its Notice of Proposed Rulemaking sought comment on a number of provisions relating to enforcement, rates and procedural issues. The Commission adopted a plethora of cumbersome new rules in all of these area that all cable operators must fully comply with, in addition to the already existing regulatory standards. The Commission attempts to justify the rule modifications by claiming that they are necessary in order to create uniformity in customer service standards, negotiation standards, rates, reporting requirements. However, these rules significantly limit the ability of cable operators to carry out their business plans in a manner that is tailored to their specific business needs. These rules become effective 90 days after publication in the Federal Register.

The Commission tried to take a preemptive strike against any challenge by cable operators, claiming that the rules, as adopted withstand constitutional scrutiny. While the DC Circuit has already held that the leased access provisions of the 1992 Cable Act are not content-based, further regulation may not survive the intermediate scrutiny standard of review due to the elimination of public access obligations in the broadcast context and the great possibility of a negative impact on revenue impact may be a taking. Further, robust growth in access to the Internet and increasing consumer preference for web-based and other alternative forms of content diminishes the need for access through traditional cable service.

FCC Releases Proposals to Reform USF

On Tuesday, January 29, 2008, the Federal Communications Commission ("Commission") released three Notices of Proposed Rulemaking ("NPRM") to examine the deficiencies in the high-cost Universal Service Fund ("USF"). The Commission asks for comment in three areas: (1) changes to the identical support rule for wireless providers; (2) use of reverse auctions to distribute subsidies; and (3) recommendations of the Federal-State Joint Board on Universal Service including making broadband services eligible to receive subsidies.

These reform proposals are long overdue as the stability of the fund, in terms of both contribution base and distributions has waned in recent years. Whether the reform efforts announced will actually go through is yet to be determined. Commission Democrats have already expressed dissenting views on the use of reverse auctions, demonstrating a lack of unity on the proposals. And, industry backlash is highly likely.

NCTA Appeals Commissionas MDU Order

On January 22, 2008, the National Cable & Telecommunications Association (aNCTAa) filed a Petition to Stay a Federal Communications Commission (aCommissiona) Order, prohibiting exclusive contracts between multichannel video programming distributors (aMVPDsa) subject to section 628 of the Communications Act and owners of multiple dwelling units (aMDUsa). NCTA petitioned the D.C. Court of Appeals for review of the Order on January 16, 2008. Prior to the Commissionas ruling, exclusive contracts were not regulated by the Commission. NCTA takes issue with the fact that the Order not only bans exclusive deals on a prospective basis, but also renders all previously exclusive deals void, stripping MVPD providers of their contractual rights and jeopardizing their ability to provide video, voice and data services.

NCTAas petition rests on the premise that the Commission has no statutory authority to prohibit exclusive deals, and even if it did, the Commission can not abrogate existing deals. Further, NCTA argues that the Commissionas decision is arbitrary and capricious as it dramatically changed its position and analysis from just four years ago and, failed to state why meddling with existing contracts results in any tangible benefit for consumers.

Given the wide range of parties involved and the nature of the issues, the Court will certainly have its hands full trying to balance the interests of all parties involved to reach a fair and workable outcome.

Recent Forbearance Petitions Demonstrate Need for Meaningful Intercarrier Compensation Reform

On January 11, 2008, Embarq filed a forbearance petition with the Commission to eliminate the aEnhanced Service Providera (aESPa) Exemption to interstate access charges. Embarq claims that grant of its petition would make ESPs telecommunications carriers, thus subject to regulation. ESPs would no longer be considered acustomersa of telecommunications carriers.

The Embarq petition makes clear that it is targeting specific types of companies for new regulation. Foremost, Embarq seeks to create additional regulatory obligations for interconnected VoIP providers, such as cable operators and Vonage. In addition, the proposed regulation would extend to purely Internet-based calling services like Skype. Most damaging is that the petition appears to treat all ESPs, including conference calling companies, voicemail providers, and others, as telecommunications carriers, subject to full Commission regulation, including reporting requirements and access charges.

Meanwhile, late last year, Feature Group IP also filed a forbearance petition requesting that the Commission affirm the ESP Exemption, as applicable to advanced IP communication systems.

Both petitions emphasize the greater need of a comprehensive reform effort to treat like services with regulatory parity under a unified rate scheme. Rather than perpetuating the interim regime, which is built upon discriminatory regulations, sponsored by industry giants, the Commission should seize the opportunity as a means toward obtaining equal treatment for all telecommunications traffic by eliminating disparate intercarrier compensation rate structures for otherwise identical functionality to even the playing field among providers and enhance consumer benefit.

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Century Park Law Group is Los Angeles Car Accident Lawyer

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