toronto police

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.

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

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.

Sources:

http://www.thestar.com/news/gta/knowntopolice2013.html

http://www.thestar.com/news/crime/2015/01/06/toronto_police_chief_bill_blair_suspends_controversial_practice_of_carding.html

http://www.thestar.com/news/crime/2015/04/16/toronto-police-board-passes-revised-carding-policy.html

http://www.thestar.com/news/gta/2015/09/25/peel-chief-refuses-to-suspend-carding.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.