police misconduct

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.

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.

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

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.