Police Misconduct

Police Officer Sentenced to 12 Months in Jail for Death of Woman in Custody

Written on Behalf of Affleck & Barrison LLP

A new decision by the Ontario Superior Court of Justice, and for the first time in Canada, a police officer has been convicted and sentenced for failing to provide medical assistance to an individual in their custody.

In November 2019, London Police Constable Nicholas Doering (“Doering”) was convicted of criminal negligence causing death and failing to provide the necessaries of life in the death of Debralee Chrisjohn (“Chrisjohn”).

THE FACTS

On September 7, 2016, Chrisjohn, while in police custody, died of a heart attack as a result of having consumed a toxic level of methamphetamine.

A video of Chrisjohn being taken into the Ontario Provincial Police detachment showed her to be limp, silent and demonstrating no signs of movement.  She was witnessed to being dragged into a cell.  At that point, EMS was called, however, by the time they arrived they were unable to save her life.

Chrisjohn was in the custody of Constable Doering, who had arrested her for an outstanding OPP warrant, and transferred Chrisjohn to OPP custody. 

At his trial, Constable Doering testified that he did not believe that Chrisjohn required medical attention and was simply suffering from the effects of methamphetamine.  According to the defence, Constable Doering made an error in judgement that was reasonable based upon his experience with methamphetamine users and his conversation with an EMS supervisor early on in her detention.  Doering denied that he deliberately misled OPP officers.

The following facts were admitted by Constable Doering at his trial:

  • Chrisjohn was unable to provide herself with the necessaries of life while in the custody of Constable Doering;
  • Methamphetamine is a powerful stimulant drug and users often experience confused cognitive function, paranoia, elevated sensory stimulation and agitation and restlessness;
  • Medical treatment is available for those who have ingested methamphetamine, which typically includes monitoring and treating the user’s symptoms in a hospital until the effects have dissipated;
  • Medical treatment is not always warranted for those who experience side-effects from using methamphetamines;
  • If treatment or intervention is required, the sooner treatment is received the better;
  • On September 7, 2016, Chrisjohn required medical treatment due to the effects of using methamphetamines at the time of her transfer to the OPP;
  • Chrisjohn was in a critical state and required urgent medical intervention from the time of her arrival at the Elgin OPP detachment and onwards;
  • The delay in providing Chrisjohn with medical treatment impacted her chance of survival.  If she had received medical attention prior to the arrival of EMS at the Elgin OPP detachment, she may have survived.

THE ALLEGATIONS AND CRIMINAL OFFENCES

At trial, Crown prosecutors alleged that Constable Doering knowingly provided false and incomplete information regarding Chrisjohn’s medical condition to the OPP when he transferred custody and told OPP that she had been medically cleared.  Thus, demonstrating a wanton and reckless disregard for her life and providing the elements of criminal negligence causing death.  Furthermore, it was alleged that Constable Doering’s behaviour was a marked and substantial departure from the standard of care of a reasonable and prudent police officer.

Section 215 of the Criminal Code outlines the offence of failing to provide the necessaries of life.  According to the law, where a person is in charge of another, he/she has a duty to provide the necessaries of life.  The standard is not of perfection. The Crown prosecutor must prove that there was a marked departure from that of a reasonably prudent person having charge of another, in circumstances where it is reasonably foreseeable that a failure to provide the necessaries of life would lead to a risk of danger to the life of the victim.

Section 219 of the Criminal Code outlines the offence of criminal negligence.  This offence requires proof that the accused did something or failed to do something that was his/her legal duty to do that demonstrates a wanton and reckless disregard for the lives and safety of others.  The offence also requires that the accused’s conduct was a marked and substantial departure from the standard of care that a reasonably prudent person would observe in the circumstances.

Justice Pomerance, in her reasons for judgement, stated:

The evidence in this case suggests that stereotypes and generalized assumptions played a role in the events leading to Ms. Chrisjohn’s death.  …

In short, Cst. Doering had pre-conceived notions about drug users and he held fast to those notions when dealing with Ms. Chrisjohn.  Rather than moulding his theory to fit the facts, he seems to have moulded the facts to fit his theory. …

I am satisfied that a reasonably prudent police officer would have appreciated the need for medical assistance at the time of the transfer to the OPP, if not before, and would have been aware of the risk that failure to obtain such medical assistance would endanger Ms. Chrisjohn’s life. 

Justice Pomerance found that Constable Doering failed to provide Chrisjohn with the necessaries of life and in providing erroneous and incomplete information about Chrisjohn’s medical condition to OPP demonstrated a wanton and reckless disregard for her life, thus contributing to Chrisjohn’s death.  He was therefore found guilty of criminal negligence causing death.

Justice Renee Pomerance sentenced Constable Doering to 12 months in jail.  In her sentencing decision, she stated:

The sentence must convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable. … [I]n some cases, loss of life will, practically and symbolically, command the most significant form of penalty. This is one of those cases.

Constable Doering has been suspended from his duties with the London Police with pay and is currently appealing the decision. 

We will continue to follow this criminal case as it makes its way through the appeal process and will report any developments in this blog.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Durham Police Release Report Regarding Body-Worn Cameras

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged, body-worn cameras have been a topic of discussion by the Durham Regional Police Service since 2014 and this topic has recently re-emerged with the release of a report evaluating the body-worn camera pilot project in Durham Region. 

Between June 2018 and June 2019, a pilot project was in place and approximately 80 officers in Pickering and Ajax, and traffic enforcement officers and members of the Festive RIDE team, were equipped with body-worn cameras.  These officers recorded more than 26,616 videos.  Thirty-two per cent of the recordings were categorized as evidence and thirty per cent of them have been or will be used as evidence in court for criminal and provincial offences trials. 

THE DECISION TO PROCEED WITH A REPORT ON THE PILOT PROJECT

In August, Ajax Councillor Marilyn Crawford and Whitby Councillor Elizabeth Roy brought a motion to reconvene the body-worn camera team and prepare a report evaluating the pilot project, which was to be completed in May 2020 but had been on pause due to the COVID-19 pandemic. 

According to Councillor Crawford:

Body-worn cameras provide the accountability with no requirement of change in legislation.  This is a tangible way of showing our community that is demanding accountability and transparency in our policing.  This is one way that we can do that. 

Furthermore, Councillor Roy stated in support of providing Durham Police Services with body-worn cameras:

We are in a day where the criticism is quite critical.  This is about protecting not just the police force but also giving the support to the community and looking at options of how we can re-evaluate bad practices, or practices that just have not been corrected.

After numerous amendments, the motion passed with a unanimous vote.  Oshawa Councillor Brian Nicholson, speaking on behalf of his community, stated:

The overwhelming majority of the citizens of our region and beyond do want to have a record kept of the interactions between the community and the police.  It’s called accountability and transparency and that is what is expected of us.

THE REPORT REGARDING BODY-WORN CAMERAS BY DURHAM POLICE

A lengthy report presented to the Durham Police Services Board has revealed that outfitting officers with body-worn cameras will cost Durham police approximately $3.81 million a year.  The report also contains a detailed analysis of data gathered to date, as well as the officers’ and the public’s perception regarding the technology.

According to the report, it is recommended that the body-worn cameras be phased in for front-line officers over the next two years.  This would require an initial one-time implementation cost of $500,000.

The report concluded that the deployment of the body-worn cameras “will provide value to our internal colleagues, partner agencies, and the community”.  More specifically, the writers found that the use of body-worn cameras would provide value by increasing the quality of evidence, positively impacting prosecutions and court proceedings, improving trust and transparency, enhancing accountability and improving service effectiveness.  However, the report does address the fact that there are “limited objective measurable data to suggest there are multiple substantive benefits to implement” a body-worn camera program and there is no room in the current police service budget to support the program.

The Police Services Board is currently reviewing the 500 page report to determine its next steps regarding the implementation of body-worn cameras in Durham region.

TORONTO POLICE SERVICES HAVE BEGUN USING BODY-WORN CAMERAS

Police officers at Toronto’s 23 Division began wearing body-worn cameras a few weeks ago, and by the fall of 2021 more than 2,300 Toronto police officers will be equipped with cameras.

The cameras will be switched on when the officers are on the way to a call.  However, there are some situations where officers are permitted to turn the cameras off.  These circumstances include those involving children, victims who are not dressed, and those who do not want to be filmed as it may be a sensitive situation.  Officers will be required to use their judgement in determining when to turn the cameras off.

Nevertheless, officers who are found to have turned their camera off when they shouldn’t have could be subjected to penalties of docked pay and their supervisors could be penalized for this decision as well.

The body-worn camera technology allows for supervisors to review what was occurring at the time the camera was turned off and determine whether it “made sense and was appropriate”.

We will continue to report in this blog on any developments with respect to body-worn cameras in Ontario and the decision by Durham Police as to whether to provide body-cameras to their officers. 

In the meantime, if you have any questions regarding charges that have been laid against you or regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

2020: Likely a Record Breaking Year for Deaths by Police in Canada

Written on Behalf of Affleck & Barrison LLP

Each year approximately five million Canadians encounter some type of confrontation with police.  The majority of these occurrences end without incident, however, roughly 30 civilians die each year following an encounter with the police in Canada.  This year has been an especially violent one with 30 civilians killed after police used force during the first half of 2020.

There is no official agency in Canada collecting or tracking the details of these police vs. civilian incidents of death.  CBC researchers, therefore, began tracking encounters between police and civilians that ended in death in an effort to build a national database and gain insight into the circumstances surrounding these fatal confrontations. 

DEADLY FORCE DATABASE

CBC researchers examined thousands of independent investigator reports, coroner reports, court records, news reports and conducted family interviews to create the Deadly Force database, which is updated and maintained by CBC’s own researchers.  The database does not include those who suffered in-custody deaths, self-inflicted wounds as a result of suicide or attempts to evade the police, or accidental police-related deaths (i.e. traffic accidents).

CBC researchers found more than 460 incidents between 2000 and 2017.  Approximately 70% of the cases involved fatal police shootings. 

The database reveals that Black and Indigenous Canadians are disproportionately represented amongst those fatalities resulting from encounters with police compared to the overall population.  Indigenous people account for 16% of the deaths, but only make up 4.21% of the population.  Black Canadians who died after police used force account for 8.63% and only make up 2.92% of the population in Canada.

Mental health issues have been under the microscope recently following the deaths of Regis Korchinski-Paquet and Ejaz Choudry (please see our recent blog) at the hands of the police.  The Deadly Force database demonstrates that most Canadians who have been killed in police confrontations suffer from mental illness or substance abuse (68% of all cases).

CBC researchers also found that the number of cases of civilian death following police encounters has risen over the past 20 years.

In response to these statistics, Tom Stamatakis, national president of the Canadian Police Association, that represents 60,000 police personnel, stated:

When you have people in crises and there’s no other option, often it’s the police that’s going to interact with those persons, and from those interactions we’re going to see, occasionally, negative outcomes.  …  Despite the fact that everybody would like to see those negative outcomes become reduced or even eliminated, if nothing changes in our society, it’s unreasonable or unrealistic for people to think that things are going to change.

CTV NEWS RESEARCH

CTV News has also proceeded to examine fatal police shootings in Canada.  CTV researchers examined 100 cases since 2017 and found that 92 of the 100 individuals who were killed in police confrontations were men. 

CTV researchers also found that more than half of those fatalities involved individuals between the ages of 20 and 34.  Although in 34 of the cases it was impossible to determine the race or heritage of the victims, there were 32 cases involving White Canadians, 25 of the 100 deaths involving Indigenous Canadians, 6 involving Black Canadians and three belonging to other visible minorities.

Investigations are still ongoing with respect to 46 of the 100 cases that CTV researchers examined.   Police officers were found to have acted reasonably under the circumstances in 53 cases.  Under the Criminal Code, a police officer is justified in using force in lawful arrest as long as the officer acts on “reasonable and probable grounds and uses only as much force as reasonably necessary in the circumstances”.    

Only in the case of Clayton Crawford who died in Alberta in July 2018 were charges laid against two RCMP officers for criminal negligence causing death.  Crawford was found asleep in a vehicle at a rest stop.  Police believed the vehicle may have been the one they were looking for in connection with a shooting that occurred the previous day more than 300 kilometres away.  An off-duty officer reported his suspicion to his colleagues who proceeded to approach the vehicle and a confrontation ensued.  Crawford tried to drive away, at which point two officers fired at his vehicle.  Crawford had been hit by more than one bullet and died.

We will continue to follow the cases of civilian deaths caused by the police in Canada and the country’s response to these growing numbers and will report any updates in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Public Petitions for Police to be Outfitted with Body-Worn Cameras

Written on Behalf of Affleck & Barrison LLP

Pressure has begun to mount throughout Canada for police officers to wear body cameras while on the job.

Growing anger and demands for answers by Canadians has escalated following the death of 29-year-old Regis Korchinski-Paquet, who fell from a 24th floor balcony on May 27, 2020 during an encounter with police, the death of Ejaz Choudry, who was shot and killed by police during a mental health crisis call in Mississauga, and the fatal death of D’Andre Campbell at his home in Brampton.

These cases, and other similar ones, are sparking a global mission to eradicate systemic racism in policing.  One of the proposed solutions is for the police to utilize body-worn cameras, which are currently in use by a only a few police services across the country.  The biggest one being the Calgary Police Service which has 1,150 front-line officers equipped with body cameras.

A petition addressed to Toronto Police Chief Mark Saunders has gathered more than 100,000 signatures.  The petition asks that all officers wear body cameras whenever responding to a call in an effort to hold officers accountable for their actions.

Chief Saunders is in support of mandatory body cameras for his officers and is hoping to begin outfitting his officers with this technology sometime this year, especially in response to the death of Korchinski-Paquet.  He stated:

This is a textbook case as to why I have been advocating for body-worn cameras and I’m now fast-tracking to the best of my ability to allow that process to speed up.

Last month, Prime Minister Justin Trudeau stated he was advocating to provincial premiers to equip police with body-worn cameras in an effort to eradicate allegations of racism and brutality.  These cameras would effectively document the police interaction with the public.

CALGARY POLICE SERVICE EXPERIENCE WITH BODY-WORN CAMERAS

Staff Sgt. Travis Baker is in charge of the body camera project for the Calgary Police Service, which has been in operation for the past 15 months.  Officers are trained to turn on the camera any time they begin an interaction with the public and are required to tell people that the camera is running. 

According to Sgt. Baker the body cameras have had positive results on policing in Calgary.  He stated:

We’re not out there to hurt people, we are out there to help people, and we want to capture all those interactions that we have with everyone regardless of what it is. 

… Pretty much if you run into a uniformed officer on the street, they’re going to be wearing a body-worn camera.  It’s pretty easy to spot – it’s right in the middle of their chest and it usually has a big glowing red light on it when it’s recording. … I think it keeps everybody on an even playing field… the camera’s unbiased, it doesn’t have an opinion.  It just records what happens in front of it.  …

Sgt. Baker believes that the body-worn cameras de-escalate the situation when officers are interacting with the public:

I think it changes the behaviour of both the officer and the person they’re dealing with, be it victim, witness or accused, because they can see the camera running.  We can get that kind of de-escalation right off the hop.  People know it’s running so they slow down and start thinking about what they’re doing.

The cameras are also an evidence gathering tool which can be used in court.  The video footage can provide details that may have been missed and if there are multiple cameras in use at an incident, it can provide views from different angles. 

DURHAM POLICE BODY CAMERA STUDY ON HIATUS

We have previously blogged about a pilot project in Durham, which ran between June 2018 and June 2019, wherein officers in Pickering and Ajax and traffic enforcement officers involved in the Festive RIDE team were equipped with body-worn cameras.  Those officers recorded more than 26,616 videos.  Approximately half of the video footage has been categorized as evidence and 30% of the recorded footage has been or will be used as evidence in court.

This type of technology was being reviewed to weigh the benefits of providing accountability of the officers in their interactions with the public and the costs of the increased workload and associated expenses involved with data processing and storage. 

In April 2020, Durham Police Service announced that the consideration of implementing body-worn cameras was being put on hold as the COVID-19 pandemic progressed.  At this time, there has been no further information regarding when the study will continue and whether any determinations have been made to resume the use of body-worn cameras in Durham region.

We will continue to follow any updates regarding the supply and use of body-worn cameras by police services throughout Ontario and will report any new developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Privacy Commissioner Concerned by the use of Facial Recognition Software by Police

Written on Behalf of Affleck & Barrison LLP

Facial recognition technology is becoming increasingly popular and being used throughout airports, shopping centres and even by law enforcement.  However, many are concerned about issues of privacy, safety and legislation regarding the use of this type of technology.

In a recent announcement, privacy commissioner Daniel Therrien, along with ombudsmen from British Columbia, Alberta and Quebec, will jointly investigate the use of facial recognition technology supplied by the U.S. firm Clearview AI in Canada.  The investigation will examine whether the firm’s practices comply with Canadian privacy laws.

Police services in Durham, Toronto, Peel and Halton have all confirmed that they have stopped using the controversial Clearview AI facial recognition technology as they await further direction from the government. 

WHAT IS FACIAL RECOGNITION?

A facial recognition system is technology that maps an individual’s facial features mathematically and stores the data as a faceprint.  The technology measures variables of a person’s face including, the length or width of the nose, the depth of the eye sockets and shape of the cheekbones.  The software uses algorithms to compare a digital image to the stored faceprint in order to identify an individual’s identity. 

Facial recognition can be used in a variety of ways, including:

  • For consumer security by mobile phone manufacturers, such as Apple;
  • For law enforcement through the collection of mugshots to be compared against databases from local, provincial and federal resources;
  • Through social media, such as Facebook, to tag individual in photographs;
  • For security purposes to recognize those that are granted entry into buildings; and
  • For marketing to determine age, gender and ethnicity to target specific audiences.

WHAT IS CLEARVIEW AI TECHNOLOGY?

Clearview AI provides law enforcement with technology to access images from social media and other websites to cross-reference uploaded images of individuals to assist with an investigation.  It is reported that there are three billion photos on the database. 

Facial recognition databases can be used by police to help identify possible criminal suspects.  The technology searches through images, such as mug shots, and algorithmically compares them with other images, such as images captured from a store’s surveillance camera, to identify an individual believed to have committed a crime.

Cleaview AI’s technology allows for the collection of a vast number of images from numerous sources that can assist police and financial institutions to identify people.  The technology requires nothing more than a photograph to provide an individual’s name, phone number, address or occupation.  This program is not available for public use.

THE TROUBLE WITH FACIAL RECOGNITION TOOLS

One of the problems of using facial recognition tools is the low accuracy.  The program may wrongly identify an innocent individual as a suspect or a person of interest. 

According to a U.S. government study released late last year, facial recognition systems misidentify people of colour more often than white people. 

The study completed by the National Institute of Standards and Technology found that many facial recognition algorithms were up to 100 times more likely to misidentify Asian and African American people than Caucasians.   Native Americans had the highest false-positive rate of all ethnicities.  They also found that there were higher rates of false positive results for African American females in the situation where searches are used to compare an image to others.

The report, Face Recognition Vendor Test (FRVT) Part 3:  Demographic Effects, reviewed 189 software algorithms from 99 developers.  The study used 18.27 million images of 8.49 million people from State Department, the Department of Homeland Security and the FBI databases.  The study focused on how well an individual algorithm performed one-to-one matching (confirming whether a photo matches a different photo of the same person in a database) and one-to-many matching (determining whether the individual in the photo has any match in a database). 

Ontario’s privacy commissioner, Brian Beamish, admitted that he was unaware that the police were using Clearview AI’s products until February 5, 2020 and has been advised that it has been stopped.  In his statement, Beamish expressed the potential dangers and privacy concerns over the use of facial recognition technology:

The indiscriminate scraping of the internet to collect images of people’s faces for law enforcement purposes has significant privacy implications for all Ontarians.  We have made it clear in the past that my office should be consulted before this type of technology is used.

We will continue to follow the investigation into the use of facial recognition technology by police in Canada and will report any updates in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Two Convictions Overturned in Ontario Due to Rights Violations by Police

Written on Behalf of Affleck & Barrison LLP

As we begin the new decade, in two separate Ontario court decisions, police violations of the accused’s rights resulted in quashing convictions for child pornography and weapons offences.  The Ontario Court of Appeal found that the breaches of the convicted individuals’ Charter rights by police brought the administration of justice into disrepute.

THE CASE OF PETER MCSWEENEY

Peter McSweeney (“McSweeney”) was convicted in October 2017 of child pornography offences partly based upon incriminating statements he made to police.

In May 2016, nine police officers arrived at McSweeney’s home with a search warrant.  Durham Regional Police Detective Jeff Lockwood spoke with McSweeney on his porch and began questioning him without reading him his rights.  McSweeney provided a self-incriminating statement and he was then arrested and taken to the police station.

McSweeney again incriminated himself after stating that he wished to remain silent after talking to a lawyer.

During the trial, Judge Mary Teresa Devlin allowed McSweeney’s statements to be entered as evidence despite the defence objecting.  Justice Devlin ruled that McSweeney was not detained when he gave a self-incriminating statement on the porch and therefore the officer was not obliged to advise him of the right to speak to a lawyer.

At the Court of Appeal, the judges found that a “reasonable observer” would have believed that McSweeney was detained at home and also found that the questioning at the police station was improper.

Justice Strathy, writing on behalf of the two other justices hearing the appeal, stated:

The state conduct was willful and in disregard of the appellant’s asserted Charter rights.  It had a serious impact on those rights and on his attempt to exercise them.

As a result of this decision, the appeal court allowed the appeal, quashed the convictions and ordered a new trial.

THE CASE OF BILAAL MOHAMMED

In May 2016, Bilaal Mohammed (“Mohammed”) was convicted of several firearm offences, possession of property obtained by crime, and possession of cannabis for the purpose of trafficking.  At the time of his appeal, he had already served his sentence.

During a routine traffic stop, Mohammed was pulled over by provincial police in a parking lot near Alfred, Ontario for a broken license-plate light.  The officer smelled marijuana and gave Mohammed a “soft caution” (an informal caution) and did not  advise him of his right to speak to a lawyer.

Mohammed was strip-searched in the parking lot, to the point of having his pants dropped to his ankle.  Police did not find a gun.  During the search of his car, police found some cash, a debt list, a grinder, a scale, several cellphones, some cannabis and ammunition.

Mohammed was asked if he had a gun and was told that if he turned it over he would be released.  He admitted that he had a loaded gun strapped to his pant leg.  He was arrested, advised of his rights and taken to the police station, at which point his cellphone was searched.

At his trial, Mohammed was convicted of various offences for which he appealed.  He challenged the trial judge’s ruling to admit evidence obtained during his roadside strip search, his interrogation without counsel, the search of his vehicle, and the search of his cellphone. 

At the appeal, the Crown agreed that failing to initially advise Mohammed of his rights, questioning him before he was able to talk to a lawyer, as well as the strip search and the search of Mohammed’s phone without a warrant were serious Charter breaches.

The judges that heard the appeal agreed with the Crown and stated “each of the breaches is serious.  Taken as a whole, the breaches are so egregious that the evidence must be excluded.”

The appeal court ruled that the first strip search was not authorized by law.  Furthermore, it was conducted in public in a highly invasive fashion.  Mohammed’s section 7 and 10(b) Charter rights were breached as he was questioned without being provided the right to counsel and he was persuaded to turn over the gun on false pretenses.  Finally, the warrantless search of Mohammed’s cellphone used as evidence of drug trafficking was in violation of section 8 of the Charter.

The three justices on the appeal court panel wrote:

This was a series of serious rights violations, committed in apparent ignorance of well-established law, arising out of the appellant’s arrest for smoking a marijuana joint.  These violations had a significant impact on the appellant’s Charter-protected interests.

The Court of Appeal excluded all of the evidence, allowed the appeal and set aside the convictions.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. 

Toronto Police Plan to Purchase Full-Body Scanners by 2020

Written on Behalf of Affleck & Barrison LLP

Toronto Police have requested at least one and up to ten full-body scanners to replace strip searches.  According to the public tender documents, Toronto Police Service “is committed to increasing the level of dignity and respect provided during our search process”.

A six-month pilot project using a full-body scanner to scan a subject’s body to reveal concealed weapons or drugs ended last April at one of the busiest divisions of the Toronto Police Service.  This pilot project allowed for the training of officers, outlining procedures and consulting with officers and members of the community. 

The scanners cost at least $250,000 per unit, require approximately $20,000 in maintenance, and there are additional costs associated with training and possible facility renovations as well.

REPORT REGARDING INVASIVE STRIP SEARCHES

A report published earlier this year prepared by the Office of the Independent Police Review Director found that police in Ontario conduct too many unwarranted strip searches. 

The report also determined that police procedures for conducting strip searches were inconsistent across Ontario.  Toronto police officers were found to use strip searches more often than other forces in Ontario.  The report disclosed that strip searches were conducted by Toronto police at a rate of 40 times higher than in similar jurisdictions, such as Ottawa or Hamilton.  Toronto police conduct strip searches in just under 40% of arrests compared to other large police forces (who use strip searches under 1% of the time).

The report indicates that some individuals that are subjected to strip searches may suffer psychological harm. 

Michael Bryant, executive director of the Canadian Civil Liberties Association, stated:

The Toronto Police Service continue having this obsession with searching where the sun don’t shine – without legal authority. 

Mr. Bryant believes that the full-body scanner technology is invasive “instead of being told to disrobe, you’re just being disrobed electronically.”

THE PILOT PROJECT

A recent report filed prior to a Toronto Police board meeting confirms that the full-body scanners that were tested at a downtown police division were a success for both the police and individuals being scanned. 

During the project, 594 strip searches were approved with 311 of the individuals opting to have their search conducted by a full-body scan.  According to the report, 296 of the 311 individuals had been previously strip searched and 95% of them preferred the full-body scan. 

According to the report, 80% of Toronto police officers had a positive judgment of the full-body scanner.

The scanners being tested were similar to the technology used at airports and correctional facilities.  The body scan can find items on or inside a person.  They are able to detect metal, plastic and other items both outside of or hidden inside of the body.  During the project, the body scanners detected a knife, crack pipe, safety pins and heroin wrapped in toilet paper inside someone’s buttocks.

Toronto Police spokesperson Meaghan Gray stated:

The Toronto Police Service believes there is technology available that allows us to modernize our current search processes, increase public trust and accountability, and reduce the intrusiveness of such searches.  These are reasons alone to consider such a project. …  Each circumstance is evaluated on a case-by-case basis and officers must make a determination, based on reasonable grounds, to conduct any level of search.  If a Level 3 search (strip search) is determined to be appropriate, the Full Body Scanner will be used.

During the project, those individuals that were deemed to require a full-body scan could refuse, but were then subjected to a physical strip search.

Due to radiation, pregnant women were excluded from being scanned.  Youth were also excluded from being scanned as a “faint outline of genitalia can be seen” in the saved images. 

Officers conducting and viewing the scans are the same gender as the individuals being scanned.  Those that identify as transgender could either choose a full-body scan or a strip search and could request that the scan or search be conducted by a male, female or both officers.

During the pilot project, the data from the full-body scan was stored for 90 days if nothing was found during the scan.  However, if an item was located during the scan and criminal charges were made, the images would be retained as evidence for court.

The project will continue at Toronto’s 14 division for another three years as it has received funding from the Ministry of the Solicitor General’s Community Safety and Policing Grant. 

Toronto Police have no immediate plans to implement the scanners in other police divisions, but it is recommended that the technology be installed “at each central lock-up facility within the service”.

We will continue to report on any developments regarding full-body scanners in Ontario in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Supreme Court Overturns Convictions in Favour of Racialized Man

Written on Behalf of Affleck & Barrison LLP


A recent decision by the Supreme Court of Canada is sending a strong message  regarding the harm of over-policing racial minorities in inner-city neighbourhoods.

In a 3-2 decision, the Supreme Court of Canada held that the police had no reasonable cause to enter a backyard and question an Asian-Canadian man and therefore set aside his convictions for possessing a gun, drugs and illicit cash.

WHAT HAPPENED?

In the evening of May 25, 2012, twenty year old Tom Le (“Le”) was speaking with four young black men in the backyard of a Toronto housing complex.

Police officers were tipped off by security guards who patrolled the complex that there were concerns of drug trafficking in the backyard of this address and that a suspect had been observed there.

Two police officers entered the backyard without consent or a judicial warrant and began to question and request identification from the young men.  A third officer patrolling the perimeter of the property stepped over a low fence and told one of the men to keep his hands where he could see them.

One officer demanded that Le provide his ID and he was asked about the contents of a bag that was slung across his body.  Le then attempted to flee the scene and was quickly tackled and apprehended.  His bag was found to contain a loaded handgun and a considerable amount of cash.  At the police station, Le turned over 13 grams of cocaine to police.

At his trial, Le argued that the evidence should be excluded under section 24(2) of the Charter of Rights and Freedoms as police violated his constitutional rights to be free from arbitrary detention and unreasonable search (contrary to sections 8 and 9 of the Charter).

At trial, the judge rejected Le’s position that police violated his rights under the Charter and found that police had legally detained Le.  He was found guilty of several gun and drug offences and was also unsuccessful in challenging his convictions at the Ontario Court of Appeal.  Le proceeded to commence an appeal to the Supreme Court of Canada.

SUPREME COURT OF CANADA’S DECISION AND REASONS

Contrary to the lower court decisions, the majority of the highest level of court in Canada threw out the convictions as a result of serious violations of Le’s rights under the Charter.  The court ruled that the police actions amounted to an arbitrary detention and serious violation of Le’s rights and therefore the evidence must be excluded.

The purpose of section 9 of the Charter, prohibiting arbitrary detention, is to protect Canadians against unjustified state interference.  A detention may not necessarily involve physical restraint, but may exist in a situation where “a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave”.

The Supreme Court found that in this case the detention was arbitrary as the police were trespassers and had no legal authority to detain the accused.  Furthermore, their intimidating behaviour made Le feel as though he was unable to leave, even though he had the right to do so.

Although the incident occurred in a high-crime neighbourhood, the court found that the police did not have the authority to enter a private yard.  The court stated:

Indeed, that a neighbourhood is policed more heavily imparts a responsibility on police officers to be vigilant in respecting the privacy, dignity and equality of its residents who already feel the presence and scrutiny of the state more keenly than their more affluent counterparts in other areas of the city.

The majority judges also found that the police had engaged in “carding” (a topic that we have previously blogged about), which is the police practice of randomly stopping and questioning individuals who are not suspected of any crime.  This is a practice that unjustifiably affects racialized individuals. 

The court found that the incident of the police entry into the backyard was another example of the experience of racialized young men who are targeted, stopped and questioned. 

The court stated:

The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience.  Carding takes a toll on a person’s physical and mental health.  It impacts their ability to pursue employment and education opportunities.

Le’s lawyers, were thankful for the Supreme Court decision in favour of their client and the message that is being distributed.  Emily Lam stated:

We’re grateful that the court heard us, that they heard the voices of marginalized and racialized communities, all of whom have been saying that they are police differently, and the court recognizing that their experience has been different.

Samara Secter stated:

I think this is a push from the Supreme Court to have police recognize that everyone’s rights deserve respect.

There has been no real response from Toronto Police Services other than its spokesperson stating that the ruling is being “reviewed and considered by the Toronto Police Service’s professional standards unit”.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Strip Searches in Ontario are Occurring Too Often

Written on Behalf of Affleck & Barrison LLP

A new report released by the Office of the Independent Police Review Director (an independent civilian oversight agency responsible for overseeing all complaints regarding the police in Ontario) concludes that police officers in Ontario are conducting unnecessary, and sometimes unlawful, strip searches which interfere with privacy rights and negatively impact criminal court cases.

Gerry McNeilly, the Independent Police Review Director since June 2008, authored the report entitled “Breaking The Golden Rule:  A Review of Police Strip Searches in Ontario” (the “report”).

WHAT IS A STRIP SEARCH?

In 2001, the Supreme Court of Canada, in the case of R. v. Golden (“Golden”), defined the elements of a strip search and explained how strip searches are to be lawfully conducted.  A strip search is defined as the removal or rearrangement of some or all of someone’s clothing to allow for an officer to visually inspect their genitals, buttocks, breasts or undergarments.   

The majority of the Supreme Court of Canada emphasized the importance of preventing unjustified strip searches and recognized that these searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy”.

The Court went on to explain that strip searches are only constitutionally valid when they are “conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest.  In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest”.

However, despite this decision, it has been found that courts in Ontario repeatedly find that strip searches conducted by police officers are unlawful or unreasonable, resulting in the exclusion of evidence or the stay of charges.

STRIP SEARCH FINDINGS BY THE NUMBERS

The report found that police in Ontario conduct approximately 22,000 strip searches a year, with the majority being conducted by Toronto Police Service. 

According to the report, in 2016 Toronto police conducted 17,654 strip searches (occurring in approximately 37.5% of all arrests that year).  Strip searches were found to have occurred in more than 40% of all arrests in Toronto in 2014 and 2015.  This was found to be 40 times higher than the rate of strip searches conducted by police services in Hamilton, Durham Region, Ottawa, Windsor and the Ontario Provincial Police during the same time period.

A spokesperson for the Toronto police, Meaghan Gray, has advised that the Toronto police are “addressing the challenges and sensitivities associated to strip searches for the last few years”.  Toronto police are reviewing procedures and training of their officers and have recently launched a full body scan pilot project, which is aimed at reducing strip searches.  Ms. Gray emphasized that when strip searches are conducted appropriately, “they can be a necessary safety requirement resulting in the seizure of weapons and drugs which pose a significant risk to the person and those around them.”

According to the report, since the ruling in the case of Golden, Toronto police were involved in 40 of the 89 criminal court decisions where a judge found that a police strip search had violated the defendant’s Charter rights.

RECOMMENDATIONS

The report provides a template for strip search procedures and a sample strip search form.  The report also offers 50 recommendations on how Ontario police services should conduct, document, and train their officers on strip searches.  These recommendations include, but are not limited to the following:

  • ensure that all police services comprehend the law regarding strip searches and the implications of violations;
  • enhance training for strip searches and incorporate strip searches into police services annual or biennial training;
  • clearly define what constitutes a strip search in keeping with the Supreme Court ruling in Golden;
  • strip searches should ordinarily be authorized in advance and be carried out by an officer of the same gender;
  • every Ontario police service should be made aware of judicial findings of Charter violations in strip search cases, and take measures to address the issues raised;
  • all Ontario police service must keep accurate statistics of the number of persons arrested or detained, the number of persons strip searched, and the justifications provided for conducted strip searches; and
  • statistics kept by Ontario police service should identify the race of the person subjected to a strip search in an effort to evaluate whether race plays a role in the decision to conduct strip searches.

We will continue to follow any developments in the news and in case law regarding strip searches in Ontario and will provide updates in this blog as they become available. 

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Supreme Court Declines Bid for Appeal by Toronto Cop

Written on Behalf of Affleck & Barrison LLP

The highest court in Canada, the Supreme Court of Canada, has denied the request for leave to appeal made by Toronto Police Constable James Forcillo (“Forcillo”) of his 2016 conviction of attempted murder and six-year jail sentence.

We have previously blogged about both the trial court decision, in which the jury found Forcillo guilty of attempted murder in the death of 18-year-old Sammy Yatim (“Yatim”), and the Ontario appeal court decision, which upheld the trial court decision.

WHAT HAPPENED?

The shooting death of Yatim on July 27, 2013 was recorded on video by a bystander showing Forcillo shooting Yatim in two separate intervals. Forcillo shot Yatim as he stood on the steps of an empty Dundas streetcar, and then resumed firing 5.5 seconds later as Yatim lay on the ground, apparently dying.

The police were called upon after Yatim exposed himself and handled a small knife on a streetcar, prompting both passengers and the driver to flee the streetcar.

Although a jury acquitted Forcillo of second-degree murder for firing the initial fatal shots, he was held guilty of attempted murder for pausing for 5.5 seconds and deciding to fire at Yatim six more times.

Forcillo was sentenced to six years in jail for firing the second set of shots which were found to be “unreasonable, unnecessary and excessive” and an “egregious breach of trust”. Forcillo proceeded to appeal his conviction and sentence, and was granted bail while awaiting his appeal.

In November, 2017, while Forcillo awaited the appeal of his conviction he was placed on house arrest bail and was living with his estranged wife, who was also his surety. During this time, SIU investigators went to his fiancee’s home to assess the apartment’s suitability. Forcillo answered the door and tried to explain that his presence at the home was only temporary. However, a lease agreement of the rental unit was found to be signed by Forcillo and his fiancée, and his name was found on the intercom directory in the apartment lobby. Forcillo was charged with failing to comply with his recognizance.

Forcillo’s bail was revoked and he was sent to prison to await the appeal of his conviction and sentence. During this time, new charges were laid against him alleging that he committed perjury by making a “false statement under oath in an affidavit” and obstructing justice by attempting to cause a judge of the Court of Appeal to act on an affidavit made under oath that contained omissions, misleading, and or false statement.

The charges for obstruction and breach of bail conditions were withdrawn after Forcillo pleaded guilty to perjury. Forcillo was sentenced by Justice Sandra Bacchus to six months in prison, on top of his existing 6 year jail term.

In April, 2018, Forcillo’s case was heard before the highest court in Ontario where his lawyers argued, in part, that the shooting should not have been divided into two separate charges as it was one continuous event. The Ontario Court of Appeal found that there were differences between the two volleys of shots by Forcillo, and therefore upheld Forcillo’s conviction and sentence.

Forcillo applied for leave to appeal to the Supreme Court of Canada. This was Forcillo’s last available remedy to overturn his conviction and jail sentence. The Supreme Court of Canada only hears approximately 11% of all cases that submit applications to be heard by the highest level of court in Canada. The court does not provide any reasons as to why cases are rejected at this level.

WHAT HAPPENS NEXT?

Forcillo officially resigned from Toronto Police Service on September 4, 2018.  He becomes eligible for day parole in July 2019 and eligible for full parole as of January 2020.

Forcillo’s criminal case has now ended with the Supreme Court’s decision not to hear his appeal, however, his legal battles are not yet over. There is still a coroner’s inquest to be held, a date for which has not yet been set. Also, Yatim’s parents have filed separate civil lawsuits against Forcillo.

Sergeant Dusan Pravica (“Pravica”), who arrived on the scene seconds after Yatim was shot, is also facing one count of misconduct under Ontario’s Police Services Act and awaits a hearing before the Toronto Police Disciplinary Tribunal. The Office of the Independent Police Review Director completed an investigation following Yatim’s death (and a complaint filed by Yatim’s father) and concluded that Pravica used unnecessary force, failed to assess the totality of the circumstances, and acted in haste when he Tasered Yatim as he lay on the ground. Pravica gave evidence at Forcillo’s trial that Yatim was still clutching a knife as he approached him and he felt that Yatim still posed a threat.

We will continue to follow Pravica’s case and await the results of the hearing before the Toronto Police Disciplinary Tribunal, and will report any developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.