Judge Criticizes Police Officer’s “False Testimony” in Drug Case

Written on Behalf of Affleck & Barrison LLP

Drug charges against three men have been dropped after an Ontario judge found that a Toronto police officer had been “deliberately misleading” in both his testimony and in his notes, as he attempted to “strengthen the case” against one of the men.

What Happened?

In 2014, the three men in question, Jason Jaggernauth, Jordan Davis, and Jimal Nembrand-Walker were charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime, after police found them in a Scarborough apartment that contained multiple types of drugs and drug-related paraphernalia.

At the time of the arrest, police officers found several grams of crack on Davis and crack, powdered cocaine, and several other drugs in Nembrand-Walker’s pockets. No drugs were found on Jaggernauth.

Conflicting Testimony

In a pretrial hearing, the officer, Constable Bradley Trenouth, testified that he saw a large piece of crack fall from Jaggernauth when officers had him stand up from his chair. This testimony was backed up by the notes that the officer said he took at the time of the arrest. During the preliminary hearing, the officer also stated that he had picked up the piece of crack off the floor after forensic officers had taken photos of the scene. However, the photos taken do not include images of that specific piece of crack. When questioned about why the photos taken did not depict the crack, the officer claimed that it might be because the piece of crack had been stepped on or moved before the photos were taken.

In addition, at trial several months later, the officer told the court that he did not see the crack fall from Jaggernauth. Instead, he testified that he had found the piece of crack on the floor near Jaggernauth and “assumed” it had fallen from him.  At this time, the officer’s story about the photos of the crack also changed, and he told the court that there were no photos of the crack because he had already picked it up and put it in his pocket before the photos were taken.

The Decision

In her decision, Justice Katherine Corrick wrote that the officer had not found the crack near Jaggernauth, but rather, had “falsely attributed” the drugs to Jaggernauth. The charges against Jaggernauth were stayed. Because of the officer’s actions, Justice Corrick excluded the evidence gathered by him and other officers. As a result, Jaggernauth’s co-accused’s were also found not guilty.

Justice Corrick wrote, in her decision:

The false attribution of evidence to an accused’s possession, and false testimony by a police officer constitute precisely the type of state misconduct that undermines the integrity of the judicial process.

Justice Corrick further noted that the officer was “deliberately misleading” in both preparing his notes, and in his testimony at the preliminary hearing. She found it “unlikely” that an officer with eight years of police experience would pick up unwrapped drugs and put them in his pocket at a crime scene. Furthermore, if the officer had merely been mistaken during his pretrial testimony, he should have informed prosecutors before the case went to trial.

Justice Corrick criticized the officer’s actions stating:

It is difficult to imagine how public confidence can be maintained in the rule of law when police officers present false evidence against accused person… [o]ur justice system cannot function unless courts can rely on the willingness of witnesses to . . . tell the truth.

Potential Discipline for the Officer

Jaggernauth’s lawyer has recommended that an investigation be immediately opened into the officer’s conduct during the matter:

The bottom line is . . . an officer falsely attributed an exhibit to my client that never was on my client.

A Toronto police spokesperson said that she cannot confirm whether the officer will face any discipline. All police disciplinary matters are kept confidential until the officer in question has appeared before a police services tribunal.

If you have questions about your legal rights, whether during an investigation, arrest, or otherwise contact the criminal lawyers at Affleck & Barrison LLP in Oshawa. Our firm and its predecessors have been protecting clients since 1992 and have significant experience with drug offences. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.

Jian Ghomeshi to Sign a Peace Bond

Written on Behalf of Affleck & Barrison LLP

Jian Ghomeshi, the former host of Q, CBC Radio One’s star-studded arts show, was found not guilty at a trial earlier this year. He was expected to stand trial again for a single charge of sexual assault in June of this year. But recent reports indicate that Mr. Ghomeshi is expected to sign a peace bond later this week which will result in the Crown withdrawing the final charge.

What is a Peace Bond?

A peace bond, which is also referred to as a recognizance is an is an order of the court made under section 810 of the Criminal Code of Canada. The order must be made by a judge or a justice of the peace and the accused must willingly agree to keep the peace and not commit any additional crimes.

A peace bond may be in force for up to one year, and may have additional conditions attached, including a requirement to abstain from alcohol or drugs, the requirement to provide a sample of a bodily substance at regular intervals (such as a urine sample). The accused may also be prohibited from possessing firearms or other weapons or may be prohibited from communicating with a person or coming within a certain distance of a specific place.

In exchange for signing a peace bond, charges are withdrawn. Signing a peace bond is not an admission or a conviction of guilt; however, a peace bond will show up on a criminal record check.

A peace bond is often put forward by the Crown when they don’t have a strong case but they don’t wish to drop the charge.

A peace bond is often used in domestic assault or other criminal cases to ensure that an accused does not contact a complainant. It is similar to and sometimes confused with a restraining order.

If an accused violates the terms of a peace bond, he or she is usually required to pay a fine to the court and could face additional charges, such as failing to obey a court order and up to 6 months in jail.

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

The Right to Silence: Part 2

Written on Behalf of Affleck & Barrison LLP

In a previous blog post, we wrote about the right to silence enshrined for all Canadians in the Charter of Rights and Freedoms. Another important component to the right to silence is the right against self-incrimination. The Charter also protects witnesses against self-incrimination. Under section 13, witnesses may not have any incriminating evidence they give as testimony used against them in separate proceedings. It is important to be aware that although it serves a similar purpose, the protection in section 13 is different from the Fifth Amendment to the United States Constitution, which allows a person to refuse to testify.

Similarly, under section 11 of the Charter, an accused person cannot be forced to testify at his or her own trial. However, when an accused person freely chooses to take the witness box and testify, there is no further right to silence. There is likewise no general restriction on which types of questions are permissible. An accused person who voluntarily testifies is not compelled to testify and is therefore not protected by section 13. However, an accused is still protected by section 13 in the sense that any incriminating evidence they gave in a prior proceeding cannot be used against them in the criminal trial. Finally, prior inconsistent testimony can be used in a criminal trial to impeach the credibility of an accused person.

A special right to silence also used to exist for spouses in Canada. It was commonly referred to as the rule of spousal incompetency or spousal immunity and it meant that a person could not be compelled to testify against his or her legally married spouse. There were a few exceptions, for example in case of sex offences or where the victims were children. However, in 2015, the Harper government enacted legislation entitled the Victims Bill of Rights Act. The Act amended the Canada Evidence Act to remove the spousal immunity protection – a common-law tradition that goes back hundreds of years.

If you have questions about your right to silence and would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Jian Ghomeshi Trial Underway in Toronto

Written on Behalf of Affleck & Barrison LLP

Last Monday, the highly-publicized and anticipated sexual assault trial of Jian Ghomeshi, began in Toronto. Mr. Ghomeshi was a former member of the band Moxy Fruvous and the host of the CBC Radio arts and culture show, Q. He was fired from the CBC in 2014 after graphic evidence came to light that he had physically injured a woman. In a Facebook post, Mr. Ghomeshi admitted that he had engaged in “rough” but consensual sex with women. Soon after, multiple women came forward with allegations of abuse, and the Toronto police began an investigation. Mr. Ghomeshi turned himself in to police in November, 2014.

Mr. Ghomeshi has been charged with four counts of sexual assault and one count of overcome resistance by choking. He has pleaded not guilty to all charges. There are three complainants in this case: actress Lucy-Anne DeCoutere of Trailer Park Boys fame and two others whose identities are protected by a publication ban. A second trial, on one count of sexual assault, is scheduled for June.

Earlier his week, Ms. DeCoutere and one of the unnamed complainants testified before Justice William B. Horkins at the Old City Hall courthouse in Toronto. The trial was adjourned Friday afternoon, and will resume Monday morning, February 8. During the first week of his trial, Mr. Ghomeshi did not speak. It is still uncertain whether he will take the stand in his own defence.

Legally speaking, the verdict in this trial has yet to be determined, and can only be decided by one person, Justice Horkins. However, in the court of public opinion, many columnists, reporters and legal pundits have already determined Mr. Ghomeshi’s guilt. Some have even suggested lowering the standard of proof that should apply, or for creating a presumption that complainants are telling the truth in these types of cases. This is cause for concern. There is no denying that a criminal trial can be immensely stressful for complainants and witnesses. While it is important to acknowledge the difficulties faced by victims of sexual assault who speak out against their attackers, it must be emphasized that a justice system in which it is easier to secure convictions in cases of sexual assault can only lead to an erosion of the rights and freedoms that we value as Canadian and that define the justice system in Canada.

Do you have questions about the justice system in Canada? To speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Ruling in Twitter Harassment Case Protects Freedom of Speech

Written on Behalf of Affleck & Barrison LLP

In a highly publicized decision read in court this past Friday, Gregory Alan Elliott was found not guilty of criminal harassment on Twitter.  The Toronto man was cleared of two charges of criminal harassment arising from his Twitter interactions with two Toronto women’s rights activists, Stephanie Guthrie and Heather Reilly. The decision by Justice Brent Knazan, believed to be among the first of its kind in Canada, provided an analysis on the nature of Twitter and freedom of expression,.

In November of 2012, Mr. Elliott was arrested and charged with two counts of criminal harassment over his online interactions with the two women. Although they had both blocked Mr. Elliott on the site in August of that year, he continued to mention them in other tweets or comment on events or subjects they were discussing online. Ms. Guthrie and Ms. Reilly told police they believed he continued to track their movements and they feared for their safety.

Although Justice Knazan believed that the women may have felt harassed, he found that there was no proof that Mr. Elliott knew they felt that way. The language of Mr. Elliott’s tweets did not include explicitly threatening language. Freedom of expression is a Charter right, and people must tolerate the annoyance of opposing views as part of that right. Justice Knazan noted that although Mr. Elliott’s tweets were mean, crass and insulting, the Crown was unable to prove beyond a reasonable doubt that there was a real threat of violence. Both women may have actually feared Elliott, but Justice Knazan felt there was not enough proof that he had the potential to become violent or that he was aware of their sentiments.

This decision is significant because it makes clear that freedom of speech rights protect even tweets or communications that may annoy or offend us. The decision also offers guidelines on how future cases involving Twitter can be approached.

If you have questions about criminal harassment or freedom of speech and would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.