Police Misconduct

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.

Crown Prosecutors Appealing Decision in Toronto Police Breach of Trust Case

Written on Behalf of Affleck & Barrison LLP

Kyle Upjohn (“Upjohn”), an officer with ten years of experience on the police force, was charged with the offence of breach of trust by a public officer contrary to section 122 of the Criminal Code and following a preliminary inquiry he was committed to stand trial. Upjohn successfully brought an application to the Ontario Superior Court of Justice seeking to quash the order committing him to stand trial.

A Crown prosecutor is appealing the decision to quash Upjohn’s criminal trial to Ontario’s highest court maintaining that the lower court Judge erred. Milan Rupic, Crown prosecutor, claims that Justice Maureen Forestall erred in failing to consider “the whole of the evidence” when considering Upjohn’s intent.

Rupic contends that Upjohn allegedly refused to help stop a young man commit suicide in High Park and should stand trial as the cop “knowingly avoided a duty of vital importance”.

WHAT HAPPENED?

On February 2, 2016, a concerned citizen reported to Upjohn, who was parked in his marked police vehicle in High Park, that a young man was preparing to hang himself in the park. Instead of coming to the aid of Alexandre Boucher (“Boucher”), Upjohn allegedly falsely claimed he was on another call and told the man to dial 911 and then drove away.

Subsequently, Upjohn was dispatched to attend to the park where Boucher, a 19-year-old, was later pronounced dead.

Initially, Upjohn was charged with criminal negligence causing death and failing to provide the necessities of life. These charges were withdrawn and Upjohn was charged with breach of trust by a public officer.

THE LOWER COURT DECISION

On application to the Superior Court of Justice, Upjohn’s lawyer argued that a breach of trust case required evidence that the accused had a dishonest or corrupt ulterior purpose for avoiding the call, and that there was no such evidence of this nature.  Justice Forestell agreed with this position and quashed Upjohn’s committal to stand trial.

THE ARGUMENTS ON APPEAL

The Crown prosecutor has filed an appeal at the Ontario Court of Appeal. The Crown argues that Justice Forestell erred in her decision to quash the trial by failing to consider the “whole of the evidence” in terms of Upjohn’s intent.

The Crown argues that the evidence supports the inference that Upjohn “knowingly avoided a duty of vital importance by means of a deceit”. Furthermore, the evidence demonstrates that in avoiding his public duty, Upjohn was untrustworthy and the breach of his duty was not for the public good.

The Crown stated:

This was not an innocent mistake. Upjohn masked his failure to act with dishonesty – by lying about being “on a call”. The lie suggests that Upjohn knew what he was doing wrong, that he was intentionally using his office for a purpose other than the public good.

The appeal in this case is scheduled to be heard in November, 2018.

WHAT IS BREACH OF TRUST?

A charge of breach of trust by a public officer is laid when an official is accused of violating the standard of conduct and responsibility demanded by his/her position.

Section 122 of the Criminal Code reads as follows:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

The Supreme Court of Canada set out the elements of the offence of breach of trust by a public officer in R. v. Boulanger:

  1. The accused is an official;
  2. The accused was acting in connection with the duties of his office;
  3. The accused breached the standard of responsibility and conduct demanded of him by the nature of the office;
  4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
  5. The accused acted with the intention to use his public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

UPJOHN’S CURRENT STATUS

Currently, Upjohn remains suspended with pay from the Toronto Police Service since May 2016.

Upjohn is also accused of three counts of professional misconduct under Ontario’s Police Services Act, including neglect of duty and acting in a disorderly manner.

Under this Act, disciplinary hearings are conducted by police services.   A hearing officer must decide whether the allegations of misconduct have been proven on clear and convincing evidence. If an officer is found guilty of misconduct, appropriate penalties may be imposed, including:

  • a reprimand;
  • a direction to undergo specific counselling, treatment or training;
  • a direction to participate in a specified program or activity;
  • forfeiture of pay or time off;
  • suspension without pay;
  • demotion; or
  • dismissal.

We will report in this blog any developments in this case as they occur, including the decision on appeal.

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 have a 24-hour phone service for your convenience. We are available when you need us most.

Oversight of SIU in Ontario

Written on Behalf of Affleck & Barrison LLP

In Ontario, the Special Investigations Unit or “SIU” is the agency that investigates deaths, serious injuries and allegations of sexual assault involving police in Ontario. It is governed by a piece of legislation called the Police Services Act. At the conclusion of each investigation conducted by the SIU, the director prepares a report summarizing the key evidence relied upon in the decision to either lay criminal charges against a police office or to clear the officer of wrongdoing. The agency has recently come under fire because of the lack of transparency, particularly in cases where no charges are laid. Reports prepared by the director of the SIU are only seen by the Attorney General, and no one else. SIU reports are generally not made public because, among other things, they contain information protected under the Freedom of Information and Protection of Privacy Act (“FIPPA”).

Recently, this issue has made headlines due to the public outcry following the shooting of Andrew Loku by a Toronto police officer last summer. The SIU recently cleared the officer, ruling that he was justified in the killing. That decision sparked a two-week protest by Black Lives Matter outside police headquarters in Toronto, calling for the release of the report and demanding an inquest into Mr. Loku’s death. Last Tuesday, after Attorney General Madeleine Meilleur admitted that she had not yet read the report despite weeks of heated protested surrounding Mr. Loku’s death, the Black Action Defence Committee called on Premier Kathleen Wynne to dismiss the Attorney General.

Many people are calling for the public release of the details of the SIU’s investigation and handling of the evidence in order to restore public confidence in the oversight of police services in Ontario. It is in the interests of justice and accountability that SIU reports into police shootings be made public.

If you have questions about this or any other criminal law matter, please contact the criminal defence lawyers at Affleck & Barrison online or at 905-404-1947.

James Forcillo: Toronto Cop Found Guilty of Attempted Murder

Written on Behalf of Affleck & Barrison LLP

After 35 hours of deliberation, a jury found Toronto Constable James Forcillo guilty of attempted murder in the shooting death of 18-year-old Sammy Yatim while acquitting him of second-degree murder and manslaughter. This unusual outcome has raised many questions as to how Forcillo could be only guilty of attempted murder when his shots ultimately killed Yatim. In fact, when Forcillo was charged with attempted murder in July, 2014, many legal experts expressed genuine confusion – with one defence lawyer stating he had never seen a person charged with murder and attempted murder at the same time.

Witnesses at the trial gave testimony about Yatim’s appearance and erratic behaviour on July 27, 2013 after he boarded a streetcar on Dundas Street in downtown Toronto. He exposed himself to passengers while wielding a knife. Passengers fled the streetcar and police arrived at the scene moments later. Numerous bystanders caught the event on video in which Forcillo can be seen firing his gun. A second officer then Tasered Yatim. The bystander videos were posted toYouTube, prompting a massive public outcry against the police. Forcillo was ultimately arrested following an SIU investigation.

The jury heard evidence that Forcillo fired nine shots in total at Yatim. The first three shots killed Yatim. By acquitting Forcillo of second-degree murder and manslaughter, the jury found that those first three shots did not constitute a criminal act. The second round of six shots, fired five and a half seconds later, were found by the jury to be neither justifiable nor in self-defence.

Medical evidence presented at trial showed that Yatim was critically injured by the first round of shots and would have died anyway, regardless of whether Forcillo had continued to shoot him. The second round of shots therefore did not kill Yatim, because his wounds were already fatal. Even though Forcillo’s intent may have been murderous for the second round of shots, he was not charged with murder with respect to those shots.

Because jury deliberations cannot be disclosed by law, it is uncertain whether they found that the shots were reasonable and necessary or that Forcillo acted in self-defence. Forcillo argued that his use of lethal force as a police officer was justified because he had reasonable grounds to believe his life and the lives of others were at risk. Many observers, included Forcillo’s defence counsel, have characterized the confusing verdict as a compromise.

If you would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Making a Murderer: A Canadian Perspective

Written on Behalf of Affleck & Barrison LLP

WARNING: This blog post contains spoilers.

Around water coolers, on social media, and in the news, it seems that all anyone can talk about in the last few weeks is the new Netflix documentary, Making a Murderer. The true-crime miniseries has caused a sensation by casting doubt on the guilt of Steven Avery and Brendan Dassey for the 2005 murder of Teresa Halbach in Wisconsin.

The series focuses on Avery, who spent 18 years in prison for rape before DNA evidence helped to exonerate him. After his release, Avery began to prepare a multimillion-dollar lawsuit against Manitowoc County, Wisconsin. Only a few weeks after police officers were deposed in the civil suit, Avery was accused of the murder of Teresa Halbach, a photographer who had last been seen visiting Avery’ property. Brendan Dassey, Avery’s teenaged nephew, confessed to police that he was Avery’s co-conspirator in the rape and murder of Halbach. Although Avery maintained his innocence from the beginning claiming that he was framed by law enforcement authorities, both he and Dassey were found guilty of murder and sentenced to life in prison.

The response to the series has been strong. Online petitions seeking pardons for Avery and Dassey have received hundreds of thousands of signatures. In the aftermath of the show, characters featured in the series have come forward saying filmmakers were biased in their portrayal of the facts. Others suggest that the filmmakers deliberately ignored compelling evidence presented at trial pointing to Avery’s guilt. Regardless of whether Avery and Dassey are guilty, it is undeniable that police and prosecutors abused their powers. The series presents a compelling view of the experiences of the accused in the American criminal justice system  Even for skeptical viewers, it’s hard not to feel a stab of empathy at the way Avery, and especially Dassey were treated.

Canadian viewers captivated by the series can now tune in to The Docket, a weekly podcast by Michael Spratt, an Ottawa-based criminal defence lawyer, and Emilie Taman, a prosecutor, who discuss the series in the context of access to justice and the differences between the Canadian and American criminal justice systems. Each podcast discusses one episode of Making a Murderer and it does contain spoilers, so if you haven’t watched the next episode of the show, it’s best not to listen to the corresponding episode of The Docket.

If you have questions about access to justice in Canada, please contact the criminal defence lawyers at Affleck & Barrison online or at 905-404-1947.

For more information, check out our previous blog posts on the differences between the Canadian and American criminal justice systems:

https://criminallawoshawa.com/differences-between-the-canadian-and-american-legal-systems/

https://criminallawoshawa.com/differences-between-the-canadian-and-american-legal-systems-part-2/

Wiretap Authorizations Require Full & Frank Disclosure

Written on Behalf of Affleck & Barrison LLP

In R v Hall, 2016 ONCA 13, the Court of Appeal found that the officer who obtained an authorization to intercept conversations between the defendant and an informant had a profound misunderstanding of the duty of full and frank disclosure.

Jeremy Hall was arrested on a gun-related charges. While incarcerated, he asked his cellmate and childhood acquaintance, Dwayne Utman, to help him make sure the witnesses would not show up for trial, indicating that both should be killed. He offered Mr. Utman $5000. Mr. Utman testified that he went to the police with this information and reported the substance of his conversations with Mr. Hall to the police. After Mr. Utman’s release from custody, he continued to report his conversations with Mr. Hall to police. The Crown’s case was heavily dependent on Mr. Utman’s evidence. Mr. Utman stood to gain financially from helping the police, and he had drug and mental health issues, in addition to being a habitual liar and a career criminal. The trial judge noted that Mr. Utman’s evidence “must be approached with extreme caution.” The trial judge was not prepared to convict Mr. Hall of the charges of counseling murder based on Mr. Utman’s testimony.

At trial, a major issue concerned the admissibility of the intercepted conversations between Mr. Hall and Mr. Utman, both in the jail cell they shared and at other locations. The trial judge found that Detective Sergeant Johnstone, the officer who obtained the authorizations to intercept the conversations, failed to make a full and frank disclosure of the facts material to making a proper assessment of Utman’s credibility. The trial judge found that the officer’s conduct “materially distorted the picture that was placed before the issuing Justice.” As a result, the trial judge set aside the authorizations. Absent the authorizations, the interceptions were unlawful and infringed upon Hall’s rights under section 8 of the Charter of Rights and Freedoms.

The Court of Appeal upheld the trial judge’s ruling that the evidence from the interceptions was unlawful and should be excluded. The appeal was dismissed.

This article is a brief overview of a complex case and is not intended to be construed as comprehensive legal advice. To learn more about this case or any other criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.

To read the full decision, click here.

RCMP Want Warrantless Access to Your Online Info

Written on Behalf of Affleck & Barrison LLP

In June 2014, the Supreme Court of Canada ruled that police are not entitled to warrantless access to online subscriber info. In the unanimous decision, the Court held that police must obtain a judge’s authorization in order to access customer information linked to online activities (R v Spencer). As a result, telecommunications service providers now demand court approval for most requests from law enforcement authorities for basic identifying information. This process now requires that police file time-consuming paperwork which has reduced the number of cases that can be pursued by police.

Earlier this week, at a security conference in Ottawa, RCMP Commissioner Bob Paulson said police need warrantless access to Internet subscriber information to keep pace with child predators and other online criminal activity. He stated that it was time Canadians had a public conversation about how to prevent online exploitation. It’s an old argument: police always want fewer obstacles between their work and the people they pursue. But experts warn that expanding voluntary and warrantless disclosure raises serious constitutional questions.

Commissioner Paulson’s request for a public conversation is odd, given that the debate has already been held. Prior to the Supreme Court’s decision last year, two parliamentary committees examined this issue. There was a great deal of editorial debate in the press about privacy concern and significant public outcry about former Prime Minister Stephen Harper’s plans to increasing electronic surveillance.

According to the commissioner, children are being “hurt at a pace and frequency that is alarming.” Most people would agree that police should certainly be working to reduce the the exploitation of children online. However, critics feel that the RCMP is using this issue as a scare tactic designed to frighten people into giving up their privacy so the RCMP can have greater powers of surveillance over Canada’s citizens. Warrants are a critical safeguard that ensure that innocent Canadians are not targeted and their rights are not infringed. It is the responsibility of police to maintain law and order, online and in real life, but that doesn’t mean that they should have limitless power. Removing the privacy safeguards of millions of Canadians because the police claim new procedure takes too long does not solve the problem.

If you have questions about your online privacy or any other criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.

Sources:

http://www.cbc.ca/news/politics/paulson-rcmp-subscriber-info-warrantless-access-1.3337028

http://rabble.ca/blogs/bloggers/openmediaca/2015/11/rcmp-pushing-warrantless-access-to-our-subscriber-info-again

Ontario to Regulate Police Carding Practice

Written on Behalf of Affleck & Barrison LLP

Late last month, following significant public outcry over the controversial practice of carding, the Ontario Liberal government announced that it would be introducing new regulations banning the arbitrary and random stopping and questioning of citizens by the end of the fall. Opponents of the practice expressed concern that the tactic disproportionally targets ethnic minorities, particularly young black men. The campaign for change was launched by deputy leader of the provincial NDP, Jagmeet Singh, a lawyer representing the riding of Bramalea-Gore-Malton, who knows his rights and had himself been carded over 10 times by police.

According to Community Safety Minister Yasir Naqvi, the new regulations would establish clear and consistent rules to protect civil liberties during voluntary interactions between police and the public. Naqvi said police will no longer be able to stop people based on how they looked or in which neighbourhood they live. Exemptions would be made in the rules to cover routine traffic stops, situations where someone is being arrested or detained or where a police officer is working undercover. Ontario police would only be able to stop, question and document members of the public if they have a valid policing purpose, defined as “detecting or preventing illegal activities.” Police would have to inform an individual of the reason for the stop and that the individual has the right to walk away. The province is allowing 45 days for public consultation, which will then be reviewed and considered. The province will then amend the regulations and allow time for police boards to make the necessary changes to policy and procedures. Once passed, the regulations would ban random and arbitrary stops as of March 1, 2016. By July 2016, the regulations around voluntary interactions, such as the need to inform individuals that they can walk away, would come into effect.

Police forces across the province, have been resistant to the call for change thus far. In response to the province’s announcement of the new regulations, the police forces have stated that although they will abide the regulations once they are put into place, they are currently working to halt some aspects of the proposed restrictions, claiming that they will prevent officers from interacting with the public. Although police forces have claimed that carding is a useful practice that helps them fight crime, they have not been able to provide any meaningful statistics that show that carding is a valid use of resources that actually prevents crime.

To discuss your criminal charges with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Sources:

http://www.cbc.ca/news/canada/toronto/carding-regulations-ontario-1.3292277

http://www.thestar.com/news/crime/2015/10/28/province-to-unveil-limits-on-carding.html

Police Misconduct: Who Watches the Watchmen?

Written on Behalf of Affleck & Barrison LLP

In The Simpsons episode, “Homer the Vigilante”, Lisa asks Homer, “If you’re the police, who will police the police?” Homer replies, “I don’t know. Coast guard?” Police officer misconduct has received considerable media attention of late. Another instance of police misconduct was covered in an earlier post on this blog.

In September of this year, the Toronto Star published a four-part series covering an investigation it had conducted into officer misconduct in the Ontario Provincial Police and the police services in the Greater Toronto Area – Toronto, Peel, York, Halton and Durham. The investigation found that police officers have been using their positions and the powers that accompany them for personal gain. In the past 5 years, according to police files, almost 350 officers in the Greater Toronto Area have been disciplined for ‘serious’ misconduct. Over 60 officers from the OPP and from the GTA police forces have also been disciplined for drinking and driving since 2010. However, although OPP Commissioner, Vince Hawkes, told the Star that individuals caught for an impaired driving offence should no longer be police officers, the Star uncovered only one case in which an officer was made to resign. In addition, Toronto police handed out the most lenient penalties to officers caught drinking and driving, despite memos and bulletins from police chiefs strongly condemning the practice.

It is concerning that many of the officers disciplined with conduct referred to as “serious” by their own services are still working as cops. While having a previous criminal record almost guarantees that a person will never be hired as a police officer, the unfortunate reality is that once someone is an officer, it is difficult to get rid of them. Many officers who are convicted of criminal offences receive a slap on the wrist and are allowed to continue working. Prosecutors and even police chiefs feel that officers are often treated too lightly.  In addition, police discipline cases rarely get reported in public. In numerous written decisions, the police officer presiding over the tribunal noted that media coverage of the officer’s misconduct would undermine public trust in the police and would cause significant damage to the reputation of the police force. But the revelation of the lenient penalties officers receive for their misconduct is troubling and equally serves to undermine public trust in the ability of the police tribunals to police their own.

To speak with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Sources:

http://www.thestar.com/news/canada/2015/09/18/disciplined-opp-member-still-a-high-ranking-cop.html

http://www.thestar.com/news/canada/2015/09/19/hundreds-of-officers-in-the-greater-toronto-area-disciplined-for-serious-misconduct-in-past-five-years.html

http://www.thestar.com/news/canada/2015/09/20/to-swerve-and-protect.html

http://www.thestar.com/news/canada/2015/09/21/police-officers-caught-using-their-position-for-personal-gain-in-recent-years.html