Friday, April 27, 2012

Police who lie: False testimony often goes unpunished

The Star
Jesse McLean and David Bruser

A justice accused Niagara Region police
chief Wendy Southall of failing to act
after learning senior officers lied about a tip
that led to one of the largest drug busts
in Ontario history.
The first time Toronto police Det. Scott Aikman deceived the court, a judge denounced his “misleading” testimony and threw out a cocaine charge against a man.

The second time, Det. Aikman’s story explaining why he and his partner searched a minivan led to the acquittal of four suspects.

accused of masterminding an international credit-card data-theft ring.

Aikman “either fabricated or concealed evidence” to justify the van search, the judge said. The four suspects, charged with a total of 321 offences, walked free.

Was Aikman disciplined for his conduct in court?

“No. Of course not,” said Aikman, explaining to the Star that he had done nothing wrong.

A coast-to-coast Toronto Star investigation found more than 120 police officers have been accused by judges of outright lying, misleading the court or fabricating evidence since 2005. Many of the officers have gone unpunished.

Police who lie: How officers thwart justice with false testimony

There is so little oversight of the problem that in some jurisdictions police forces did not know judges found that their officers misled the court. Internal investigations into four cases — three in Peel, one in York — were started after the Star brought the courtroom misconduct to the departments’ attention.
Compounding the lack of oversight is a lack of accountability to the public.

Big-city forces, including Montreal and Calgary, refused to say whether their officers were disciplined.
At the Toronto Police Service, where at least 34 officers have come under fire from judges for being untruthful in court in recent years, there is little indication Chief Bill Blair considers the judges’ findings a call for change.

The chair of the civilian oversight Toronto Police Services Board, Alok Mukherjee, told the Star he is troubled by this “serious issue” and wants something done to stop the lies from eroding the public’s trust in his police force.

“If we say a police officer takes an oath of office to uphold the law, if we require that they must be of good moral character and integrity …then someone who is found to have lied or falsified their notes, can they be said to be upholding their oath? Can they be said to have demonstrated integrity?” he said. “My simple, non-legal mind says: That’s misconduct.”

The Star sent letters to police forces across the country asking how they responded to the judicial findings questioning their officers’ credibility. The reactions ranged from receptive to unaware to dismissive.

In Edmonton, where judges found at least nine officers have been misleading or not credible, one was found guilty of three counts of insubordination, while two more are awaiting disciplinary hearings. Two others are being investigated. Chief Rod Knecht said the force has a range of disciplinary measures for officers found to have been deceitful, from re-training and fines to termination.

“The credibility of a police officer is sacrosanct. Our entire profession is based on the principle that police officers will act and be held to a higher level of accountability,” Knecht told the Star. “Every instance of deceitful behaviour damages the collective reputation of police everywhere. Once damaged, that reputation is hard to restore.”

In contrast, in two cases where judges found Ontario Provincial Police officers’ testimony and evidence was misleading, none of the officers were formally disciplined. (The force would not say whether a third officer, a civilian court constable, was disciplined.)

While OPP Commissioner Chris Lewis said the force “takes any allegation of wrongdoing against its members seriously and will investigate,” he questioned whether a judge’s “opinion” is “correct or proven.”

Lewis said criticism of the “quality and truthfulness of officer testimony is rare.” Where the force finds such cases, the officers could face additional training or supervision, or disciplinary action.

At the Toronto force, Chief Bill Blair would not be interviewed. His spokesman, Mark Pugash, accused Star reporters of bias and said “your story cannot be taken seriously.”

“A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt,” Pugash said. “The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence.
“You either don’t understand, or you don’t want your readers to understand, the fundamental distinction between a judge’s comments and a judge’s rulings.”

Toronto defence lawyer Reid Rusonik disagrees.

“How can there be any accountability or a proper disciplinary process in place if they don’t even allow for the possibility that officers lie? It’s surreal,” said Rusonik, who in the last few years has exposed police fabrications in more than a dozen cases across the GTA, six leading to the acquittal of clients charged with possession of a handgun.

Mukherjee, Toronto’s police board chair, said judges should not be ignored. The chair has raised the issue with Toronto Police brass, he told the Star, but has been met with a defensive rationale that while police are catching bad guys, judges are letting them go on legal technicalities.

British Columbia seems to be the only province with a formal reporting system in place. If a judge criticizes the truthfulness of a witness’ evidence or testimony, the prosecutor should report it to a senior Crown attorney. The prosecutor should also recommend to the police force that it investigate alleged misconduct.

In Ontario, no one tracks instances where an officer’s credibility has been brought into question. Ontario’s Ministry of the Attorney General says it is a police force’s job to investigate lying officers.
That is assuming someone tells the police. Officers who testify often leave court and are not present when a ruling criticizing their credibility is made.

Pugash said the Toronto force has completed 12 investigations into alleged courtroom misconduct since 2010 and found no evidence of wrongdoing with respect to false testimony. He said the force only learned of the majority of these cases from media accounts of trials. He said defence lawyers and prosecutors have a responsibility to alert police to allegations of officers lying in court.

Yet there is no requirement for a Crown to report dishonest testimony. It is the discretion of a prosecutor to contact the deceitful officer’s superiors. Some do, some don’t.
The consequence: Police misconduct is going unpunished.

Apparently no one from Peel Police knew when Justice Steven Clark found two of the force’s officers were “misleading” when explaining why they illegally entered a suspect’s apartment.

“Few actions more directly undermine both goals of the integrity of the judicial system and the truth-seeking function of the Court than misleading testimony from persons in authority,” the judge said.
Seventeen months after the ruling, when questions from the Star brought Justice Clark’s ruling to the force’s attention, Peel Police began investigating

The British Columbia reporting policy and the case of RCMP blood-spatter analyst Ross Spenard shows how an allegation of a police lie can be properly, and relatively quickly, dealt with.

Spenard was testifying in the 2009 trial of a First Nations woman who stabbed her toddler to death. During the cross-examination, Spenard was exposed for misleading the court, including testifying that another officer had written a flawed forensic report when in fact he was the author.

“Staff Sgt. Spenard is the perfect example of a person who clearly lied under oath, and violated his oath to tell the truth, and he even agreed to this,” Justice John Truscott told the jury. “That conclusion is so clear and convincing, and so serious, that I suggest you should consider his evidence to be completely tainted, and without any value whatsoever.”

Four months after the judge’s comments, the prosecutor’s office formally complained and asked Vancouver Police to investigate Spenard’s conduct on the stand. He was charged and later pleaded guilty to perjury. He received a nine-month conditional sentence. He is retired from the RCMP.
Mark Berry, a former prosecutor whose 2006 case against a 649-marijuana plant grow-op in Surrey, B.C., fell apart after a witness, an RCMP officer, misled the court, said police forces should pay attention when judges make negative findings on officer credibility.

Otherwise, said Berry, now a defence lawyer, the police departments risk “dooming themselves to repeat the same mistakes in the future.”

Toronto cop Scott Aikman, who has several commendations from his force, did exactly that.
In the fraudulent credit card case, he and another officer stopped a van after it allegedly ran a stop sign.

The traffic stop turned into a search under the Liquor License Act after Aikman allegedly detected evidence of alcohol in the van. The search turned up a white plastic bag full of fraudulent credit cards.

The judge did not accept Aikman’s evidence that there was allegedly alcohol in the van, and said that his “claims were after-the-fact efforts to justify a vehicle search” that he should not have made.

The lynchpin of Aikman’s evidence was a Gatorade bottle that one of the passengers allegedly admitted contained vodka. The bottle was empty when it was finally submitted into evidence. Aikman testified that it must have spilled while he was searching the van. It also was not bagged as evidence right away, nor was the bottle tested until a year after the bust, and only after repeated requests by a defence lawyer. At the time of the test, the alleged liquid residue was no longer testable.

The bottle’s “contents suspiciously and too conveniently disappeared,” Justice Miriam Bloomenfeld said, adding Aikman “either fabricated or concealed evidence in order to justify the search after the fact.”

Aikman’s “disregard for the accused’s Charter rights demonstrates how the actions of one state actor can denigrate the integrity of a prosecution,” Bloomenfeld added. “It is precisely the type of state conduct from which the court must dissociate itself if the administration of justice is not to be brought into disrepute.”

The decision is being appealed.

When asked about the two cases where judges found he misled the court, Aikman told the Star he was not allowed to talk to the media. Though he did not discuss either case in detail, he said, “It’s very unfair that one side is being reported,” referring to the judge’s comments on his testimony. Aikman also said his force would have investigated his conduct had he done anything wrong.

“The fact that there can be multiple findings about an officer reinforces the need for a formal oversight process,” said lawyer Graham Zoppi, who represented one of the accused in the data theft case.
Toronto Police Board Chair Mukherjee has a proposed fix:

There must be a formal mechanism through which the prosecutor’s office notifies the force and the police board whenever negative findings are made about an officer’s credibility.

Ontario’s Police Services Act, which Mukherjee has said is “silent” on this issue, should spell out whether a judge’s finding that a police witness lied constitutes professional misconduct.

Police chiefs, who oversee internal discipline under the Police Act, “need to think about their responsibility” in responding to judges’ concerns.

While officer discipline is controlled by the chief, as spelled out in the provincial Police Act, Mukherjee is seeking legal advice on whether there is a punishment the police board, on its own, can levy to deter lying under oath: Blocking promotions of officers caught doing it.

Frustration with police dishonesty bubbled over in a Niagara Region courtroom last August, when a judge made a controversial ruling in an attempt to get police brass to act.

The case stemmed from one of the largest grow-op busts in Ontario’s history. In May 2008, Niagara officers raided a series of buildings, including a greenhouse and former church. They seized thousands of plants and arrested eight people in what was described as the takedown of a $16-million operation.
The original tip came from a Hamilton detective, who had noticed a suspicious home in the town of Lincoln while visiting family over Christmas.

But the Niagara detective, James Malloy, and other officers tried to hide the source of their information and “made inaccurate and misleading notes” by claiming the information came from an anonymous source, Justice Peter Hambly said in his ruling.

“Malloy lied under oath and stated that he would have continued to lie under oath in court if he had not been caught,” the judge said.

The officers did not follow their obligation to share all the information they found in their investigation to the prosecutor, the judge said. Instead, they censored and redacted the information on their own.
Once aware of the officers’ cover-up, Niagara’s senior officers were indifferent to the misconduct, Hambly said.

“Senior officers have taken no action. The chief of police (Wendy Southall), who now knows what has taken place, has taken no action,” he said. “It seems highly likely that what has happened here will continue to happen unless the court refuses to hear the case.”

Hambly, frustrated with the police force’s apathy, stayed charges against two of the accused, saying the decision was worth the “price” to maintain the integrity of the justice system.

The day after, Niagara Regional Police Service requested an outside police force probe the officers’ conduct. The London Police Service’s investigation has been suspended, though, as the prosecutor appeals Hambly’s decision.

The force did not say whether the officers have been disciplined.

Jesse McLean can be reached at

David Bruser can be reached at 416-869-4282 or

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