Police Misconduct

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:



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.




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.




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.






Carding, Street Checks and “Community Engagement”: Know Your Rights

Written on Behalf of Affleck & Barrison LLP

What is Carding?

Carding (sometimes referred to as street checks or “community engagement”) is a controversial police practice of stopping people, apparently at random, to ask a series of intrusive questions and collect information. Carding often begins when a police officer approaches someone in a public place – on the street, in a park, outside a convenience store – and strikes up a conversation, asking an individual or group what they are doing. The officer then asks for identification, without placing the individual(s) under arrest.

According to investigative reports conducted by the Toronto Star , people stopped for carding between 2008 and 2013 were more likely to be African-Canadian than white, and the vast majority of encounters did not involve an arrest or charges. Despite charges not being laid, details about each individual were recorded and entered into a massive database. The Star reporters found that Toronto police filled out at least 2.1 million contact cards involving 1.2 million people between 2008 and 2013.

In 2014, rules about carding were briefly amended to require police to inform people of their rights and issue a receipt to the individual which would include the officer’s name and badge number. However, these rules were never fully implemented. In April of 2015, a new policy was announced requiring police officers to tell people why they are being stopped if they ask, and inform them that they are free to walk away. Police would also be required to give citizens business cards instead of receipts.

Although the police have claimed that the practice is legal, the legality of the practice is still unclear. Earlier this week, departing Ontario ombudsman Andre Martin stated in a report, “Stopping citizens without an objective an reasonable basis for believing that they may be implicated in a recent or ongoing criminal offence, or where there are reasonable and probably grounds to arrest them, is unconstitutional – it’s a form of arbitrary detention contrary to section 9 of the Canadian Charter of Rights and Freedoms.” Those calling for an end to the practice see no distinction between carding and racial profiling.

Know Your Rights

Many people are not aware that Canadians are not required to carry identification except when driving. In addition, an individual has the right to walk away from the police if he or she is questioned and not offered a legitimate reason for the police interest. If an individual is being arrested, he or she also has the right to counsel. But many people who have been carded report being intimidated by the confrontation and feel pressured to speak to police.

Jurisdictions across Ontario have been considering whether to suspend the practice as they await provincial regulation. Hamilton and Peel Region announced this week that they would not be suspending carding. Meanwhile, Queen’s Park has been consulting with police, concerned community groups, civil libertarians, the Ontario Human Right Commission and the general public with the aim of introducing a reform of carding later this fall.

If you have any questions about carding or to find out more about your rights, contact an experienced criminal defence lawyer at Affleck & Barrison online or at 905-404-1947.








Toronto Police Collude to Frame Man for Heroin Possession

Written on Behalf of Affleck & Barrison LLP

old car in alley

The abuse of police powers has received significant media attention in recent months particularly with the accusations of disproportionately targeting visible minorities during street ‘carding’ checks. In addition, an investigation conducted by the Toronto Star found that police who give false testimony are rarely disciplined.

In R v Tran, 2015 ONSC 5607, a recent decision of the Ontario Superior Court, Justice Edward Morgan stayed drug charges against the defendant and threw out the seized drugs as evidence as being planted in the defendant’s car by the Toronto Police.

On the afternoon of January 13, 2014, Nguyen Son Tran was pulled over for allegedly running a red light. He was arrested and charged with heroin possession when the officer who pulled him over spotted white powder on his dash. His car was searched, 11 grams of heroin was discovered in the vehicle and he was then re-arrested for possession for the purpose of trafficking. The Court heard very different accounts of the events leading to Mr. Tran’s arrest from the arresting officers and Mr. Tran himself.

The case turned on the admissibility of the seized drugs, and whether the police officers who searched Mr. Tran’s vehicle were acting within their lawful authority.  As the Supreme Court of Canada indicated in R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, at para 16, a “search is only justifiable if the purpose of the search is related to the purpose of the arrest.” If it is not established that the police saw heroin on the console of the car, the evidence seized in the search would have to be excluded.

The trial judge found that the police had colluded to place the loose heroin on the dash after their search to cover their tracks for conducting an illegal search of Mr. Tran’s vehicle.  Justice Morgan described the conduct of the officers as egregious and wrongful. He found the officers had no real explanation for all the wrong information they shared and had colluded to come up with an untrue version of events.

It is uncertain yet whether the officers in this case will be disciplined or face charges. Police officers must be held accountable for their betrayals of trust, because when they act like this public confidence in police inevitably erodes.

For more information and to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

To read the full decision in R v Tran, 2015 ONSC 5607  click here.