TORONTO STAR INVESTIGATION: WHEN POLICE LIE

April 26-May 1, 2012
Jesse McLean and David Bruser
The Star

A Toronto Star investigation that found more than 100 cases of police deception in Ontario and across the country.  "Their false testimony conceals illegal techniques, excessive force and racial profiling. But accused criminals are walking free as Canadian judges clamp down."

Part 1 - Police who lie: How officers thwart justice with false testimony

Part 2 - Police who lie: False testimony often goes unpunished

Part 3 - Police who lie: National police body says justice system needs to act over lies

Part 4 - Police who lie: For hollering at police, a man was beaten and Tasered

Part 5 - Police who lie: Judge said officer “intentionally misled the Justice of the Peace”

Part 6 - Police who lie: In Edmonton, a veteran detective’s testimony ‘excessively disturbing’

Part 7 - Police who lie: Affidavit by officer gave “misleading and false information”

Part 8 - Police who lie: Attorney general orders probe of police deception

Before the Star published the series of articles, Toronto police spokesperson Mark Pugash sent a combative statement in which he equated the language used by judges in the cases reviewed by the Star to “throwaway comments unsupported by evidence.”

The Star's letter to Mark Pugash.

New rules urged for SIU probes

April 8, 2011
Curtis Rush and Dan Robson, Toronto Star

Officers under investigation in incidents of serious injury or death must not communicate with each other or share a lawyer, former chief justice Patrick LeSage has recommended.

LeSage issued a three-page report Thursday after a 15-month review of relations between police and the Special Investigations Unit, which probes such incidents.

The review was triggered when Ian Scott, director of the civilian watchdog agency, criticized Ontario’s police forces and unions for allowing officers to collude and conceal incriminating evidence in criminal investigations.

Speaking to reporters at Queen’s Park, LeSage said he hoped his review will address concerns that the system is failing.

“I think it will perhaps at least put aside some of the suspicions that I have heard that have occurred in the past,” he said.

Attorney General Chris Bentley said he was happy with LeSage’s “clear, simple and direct” recommendations, which will strengthen public confidence in the SIU. Bentley said he will act on the recommendations as quickly as possible.

“Are we going to move?” he said. “Yes.”

A recent Star investigation found that police officers across Ontario are treated differently than civilians when accused of seriously injuring or killing a person. In some cases, the SIU was unable to properly investigate.

The Star found examples of officers being allowed to delay writing notes and of sharing lawyers while involved in the same SIU review. It also highlighted concerns that officers were collaborating on stories to prevent the SIU from learning the truth.

The LeSage review addressed all these points.

He recommends officers involved in an incident, either as a witness or subject, cannot communicate with each other until the SIU probe is finished.

Officers who are witnesses in an SIU investigation cannot share a lawyer with the officer under review. And officers’ notes are to be completed at the end of a shift, unless otherwise excused by the chief.

LeSage also reminded lawyers who represent more than one officer not to share client information.

The recommendations apply to police services across Ontario, which operate under different rules and regulations. LeSage called on the province to review the legislation and regulations governing the SIU and its relationship with police within two years.

Toronto Police Chief Bill Blair said all LeSage’s recommendations are consistent with current force policy.

“I don’t see that any of it results in any significant change in the way we have been doing business,” Blair said.

However, opposition parties were quick to voice concerns with the review.

LeSage fails to address the issue of who police officers’ notes belong to and how they are handled, said Conservative justice critic Ted Chudleigh.

“A number of questions about that need some answers, and I didn’t see any answers coming out,” he said.

The report also omitted the issue of compelling officers to cooperate with an SIU investigation, said NDP justice critic Peter Kormos.

In September 2009, Scott announced he was unable to decide if an OPP officer was guilty of wrongdoing in the shooting death of Levi Schaeffer, a 30-year-old schizophrenic man from Peterborough. The officer and his partner were the only witnesses.

Scott said the officers had their notes vetted by a police union lawyer before submitting them to the SIU. His public comments sparked tension between the SIU and police unions.

Last January, the attorney general’s office appointed LeSage to conduct his review.

Lawyer Julian Falconer, who represents Schaeffer’s family, questioned the review’s clout.

Falconer said the province has “made a full-time hobby” of collecting recommendations and lacks “the political courage to take the police on” and enact laws immediately.

“It’s high time to stop the talk,” Falconer said.

"Why couldn't they use a TASER?"

Just over a year ago, on June 23, 2009 (five years to the day after my brother was tasered to death in Vancouver, BC), Peter Holran, VP Government and Public Affairs, Taser International, "tweeted" on TWITTER, under his Twitter-name : TASERPeter - as follows:

RT @m2lowe I'm all for tasers if they prevent this: "Police shoot mentally disabled man"
10:27 AM Jun 23rd, 2009 via web
Reply Retweet

When I read Peter Holran's "tweet", I responded on this blog: taser executive tweets on tasering canadians with intellectual disabilities

Pete was referring to the tragic case of a Canadian fellow named Doug Minty, a man in Barrie, Ontario, with intellectual disabilities who had become agitated as the result of a visit from a door-to-door salesman. The Ontario Provincial Police (OPP) were called to his home. Mr. Minty was SHOT FIVE TIMES by the OPP and he died on June 22, 2009.

The OPP were exonerated in Mr. Minty's death.

"Why couldn't they use a Taser?" asked his neighbour.

YESTERDAY, the Ontario Provincial Police USED A TASER on Aron Firman, a 27 year old man with mental illness. Within moments, Mr. Firman "became unresponsive" and he died. Like Doug Minty, Aron Firman was unarmed and posed no credible threat to trained police officers.

To Peter Holran, VP Government and Public Affairs, Taser International, and Julian Fantino, Commissioner of the Ontario Provincial Police (aka Mr. "I am absolutely convinced that tasers save lives and injuries for both citizens and police officers", aka Mr. "Do your own homework"), I repeat: In Canada, we DO NOT shoot NOR do we taser our most vulnerable citizens. This man had mental illness, for god's sake. He did not deserve this.

This hurts.

I work for a wonderful Community Living organization in southeastern Ontario that supports people with intellectual disabilities. Our staff are trained in CPI, an international training process that specializes in the safe management of disruptive and assaultive behavior. It is seldom required but works beautifully.

A commenter this evening said: You fail to mention that FOUR (4) Ontario Provincial Police officers were involved at the Collingwood Ontario group home when Aron Firman, a 27-year-old resident when "Officers used a conductive energy weapon, a Taser, to subdue" him! FOUR COPS! Ontario Provincial Police sent FOUR cops to subdue one 27-year-old? What's wrong with this picture?

(There were THIRTEEN Vancouver police officers present when my brother, Robert Bagnell, died on June 23, 2004.)

**************

There`s more to this story than meets the eye:

In May 2010, an Ontario Judge was asked to find OPP’s Julian Fantino violated Police Services Act in a landmark court case that will decide whether police officers in Ontario routinely break the law during SIU investigations. Doug Minty's case was highlighted: “In that time, the OPP received statements from the most significant eyewitnesses, had their media officer attend and had (the union involved),” according to court documents. The officers’ lawyers conferred with them at the scene before the SIU arrived on the scene almost four hours later. The officer would later say he saw Minty advancing with a knife. Also in May 2010, Ontario's Ministry of the Attorney-General's Chris Bentley stopped government lawyers from working for the SIU in the high-profile case. Four lawyers, including one of the ministry’s most senior counsel, had been representing SIU director Ian Scott in the proceedings. But, just hours before the hearing was scheduled to begin, the SIU – an arm’s length branch of the ministry – was told to find its own representation. For more information, GOOGLE Doug Minty+Julian Fantino.

O'Sullivan files complaint - Belleville police chief promises full review

May 28, 2010
Luke Hendry, The Intelligencer

Retired boxer Shawn O'Sullivan has filed an official complaint against the Belleville Police Service, The Intelligencer has learned.

Bill Reid, O'Sullivan's Toronto lawyer, told The Intelligencer Thursday he filed the complaint earlier that day with the Office of the Independent Police Review Director (OIPRD), an arm's-length branch of Ontario's Ministry of the Attorney General.

"I will always believe in the force because there will always be a need for a force to uphold justice," Belleville's O'Sullivan, 48, said Thursday.

But he said police used excessive force in arresting him Nov. 28, 2009 and he's concerned that it could happen to others. "If they do it to me and get away with it, they will do it to everyone," he said. "If it will come to pass that these police will get reined in a bit or walk a different walk, then that would be great."

Neither Belleville Police Chief Cory McMullan nor OIPRD staff could confirm the complaint had been made; each cited they couldn't talk about specific cases because of privacy law.

Both agencies, however, pledged a full review of the complaint.

O'Sullivan, a Toronto-born 1984 Olympic silver medallist, was on a quest for his stolen championship rings when he entered the yard of a Belleville resident and they scuffled.

Charges of assault and mischief against O'Sullivan were withdrawn May 13 after he agreed to enter a peace bond ordering him to stay away from the resident. O'Sullivan said he felt vindicated.

Police and O'Sullivan agree an officer shocked him with a Taser or similar high-voltage weapon before arresting him.

Reid said the shock doesn't appear to have caused lasting injury but the "degree of violence" used in the arrest lingers.

"My knees kill me now," said O'Sullivan.

Reid said his client now descends stairs backwards to avoid some of the pain. O'Sullivan has seen a doctor about his injuries, Reid said.

Police said he was combative and "physically resistant" with officers. O'Sullivan denies that report vehemently, saying he was trying to talk with them when shocked.

"I don't resist," he said. "Had I resisted they would be in hospital still. These bastards, they're not police -- they're thugs with badges," he said, though he stressed the remark is limited to his arresting officers, not the entire city force. "There's a lot of great guys I know on that force," he said.

"The police just moved too quickly," Reid said. "I think good policing means listening a little to the other side first."

"If you don't investigate further it just turns the complainant into the police," he said, adding officers "acted like judges" on the night in question and used the Taser needlessly. Talking with O'Sullivan would have led to a different result, he said.

Chief McMullan said she couldn't comment directly on the case. "I can't comment on whether a complaint has or hasn't been filed," she said. "Mr. O'Sullivan and his lawyer are free to state whatever they wish to state. The police service is not," McMullan said. "If there's a complaint made ... we'll make sure that it's fully investigated and a report will be filed with the outcome, but I can't comment specifically on the information that you have," McMullan told The Intelligencer.

She said commenting would identify the person publicly as someone complaining about police. "We don't want that to be a deterrent," she said.

Allison Hawkins, a spokeswoman for the OIPRD, said the agency takes up to 10 days to ensure a complaint falls under its mandate. Conduct complaints take on average 90 days to investigate, she said.

Complaints can be probed by either the local police service, another police service or the OIPRD.

The local police chief is given a copy of the complaint; the officer in question receives an edited version. Regardless of who investigates, that agency must rule whether or not a complaint is substantiated. Substantiated complaints are deemed serious or less serious, said Hawkins. A complainant can appeal the decision of a police chief.

"If it's retained by our office our decision is final," said Hawkins. "Decisions are only made public if they go to a disciplinary hearing," she said.

Reid said he was commenting on the case only because interviews were requested. O'Sullivan isn't complaining out of a desire for media coverage, he said. Reid said the concern about use of force should be addressed. "If it's swept under the carpet that doesn't help anybody." He added O'Sullivan has "other avenues" to address his concerns outside the OIPRD complaint process and that a civil lawsuit against police is "still a possibility."

O'Sullivan said he would seek financial compensation.

Reid, though, said the OIPRD process "is a really good way of redressing this issue" and he and O'Sullivan will watch it unfold. "This may be all that's required."

Lawyers pulled from hearing into whether officers break laws

May 13, 2010
Robyn Doolittle, Toronto Star

Attorney General Chris Bentley is being accused of bowing to police pressure following a last-minute decision to pull ministry support from a controversial court case, which will rule whether officers routinely break the law when dealing with the Special Investigations Unit.

Four lawyers, including one of the ministry’s most senior counsel, had been representing SIU director Ian Scott in the proceedings. But late Wednesday, just hours before the hearing was scheduled to begin, the SIU – an arm’s length branch of the ministry – was told to find its own representation. The SIU investigates when a civilian is seriously injured or killed by a police officer.

MPP Peter Kormos, NDP critic for Community Safety and Correctional Services, said it looks as though the Attorney General is succumbing to police pressure.

“Something is seriously amiss here and it should be disturbing to everyone. The police seem to be able to call the shots with respect to the ministry of the attorney general,” he said.

The ministry did not respond to an interview request.

Scott has asked a judge to find that OPP officers and Commissioner Julian Fantino violated a section of the police act pertaining to SIU probes.

In court filings, he has called for an end to the longstanding practice of officers having their notes and comments vetted by a police union lawyer before being interviewed by the SIU. He has also taken issue with the fact that often one lawyer represents all the officers involved, including witnesses. Because lawyers are legally obligated to share information, Scott has argued police officers are not properly being segregated.

The case, which was launched by the families of two mentally-ill men killed by OPP officers last summer, is significant because although it is focusing on these two incidents, the practice of note vetting is common across the province. If the judge agrees with Scott, it will have widespread ramifications for Ontario’s police community.

Early Wednesday, just hours before the lawyers were removed, OPP union president Karl Walsh sent out an internal memo blasting the SIU and “assistance of the Ministry of the Attorney General.”

“We will not be treated as second-class citizens and demand that the established protections already in place not are tampered with,” Walsh wrote. “I ask that you pay particular attention to this issue and encourage you to let your elected representatives know about this unwarranted challenge to our rights and our integrity.”

The memo also revealed that the OPP union, Toronto police union, Police Association of Ontario and the Ontario Association of Chiefs of Police have pooled legal resources to fight the application.

Earlier this week, Bentley said that the ministry had not taken a position on the issue, but behind-closed doors, the police community had expressed anger over the legal support of the SIU.

Toronto Police Association President Mike McCormack said the move has nothing to do with police pressure. Ministry of the Attorney General lawyers were representing both the SIU and Fantino in the case.

“So there’s an obvious conflict there, this is the right move,” he said.

Kormos countered that the OPP and Fantino are actually part of the solicitor general’s ministry, so if anything, the conflict is with the commissioner.

“It’s very peculiar. The SIU is a part of the Attorney General’s office. It seems to me that the Ministry of the Attorney General should be representing its own body,” he said.

SIU calls OPP, Fantino conduct illegal

May 11, 2010
Dave Seglins, CBC News

Ontario's top police watchdog is accusing Ontario Provincial Police Commissioner Julian Fantino and a number of his officers of breaking the law by failing to properly co-operate with probes into two separate fatal OPP shootings last summer.

Ian Scott, director of the Special Investigations Unit, accuses Fantino of failing to ensure officers promptly notified the SIU of one case last June. In a second incident, Scott accuses Fantino of failing to ensure officers were properly segregated by allowing them to consult the same lawyer and to prepare two sets of notes — only submitting a final version of events vetted by their lawyer.

In an unprecedented step, Scott, with the signed backing of four lawyers from Ontario’s Ministry of the Attorney General, is siding with the two grieving families.

They together head to court on Thursday to ask a judge to rule that Fantino and his officer broke regulations and the Ontario Police Services Act in their interaction with the SIU.

Family decries OPP delay in calling SIU

Douglas Minty, 59, who was mentally disabled, was shot five times by an OPP officer in Elmvale, Ont., on June 22, 2009. (CBC)Diane Pinder's mentally disabled brother, 59-year-old Douglas Minty, was shot five times by an OPP officer in Elmvale, Ont., on June 22, 2009.

Minty had become agitated as the result of a visit from a door-to-door salesman, and police were called to the house.

"My brother was very loved. He did not deserve this tragic end to his life," Pinder told CBC News. "We are looking for answers as to why this had to happen … and the answers that we've got … some of them have been unbelievable."

The SIU report on the incident concluded a single officer shot Minty five times after he wielded a small utility knife with a 2.5-inch blade. His family is suspicious of this account because the knife found at the scene had its blade retracted in a closed position.

More importantly, the Minty family questions why the OPP took one hour and 23 minutes to alert the SIU. During that time, however, OPP did call in supervisors, a media relations spokesperson and a lawyer from the Ontario Provincial Police Association. The OPP even took two key eyewitnesses away for a debriefing before alerting the SIU to take charge of the scene around the police shooting.

"The scene is in essence tainted. That is not the way it's supposed to work," said the Minty family's lawyer, Julian Falconer. He filed the application that has won support from the SIU and the ministry lawyers asking for a ruling on the conduct of the OPP.

"The commissioner has a personal responsibility to ensure immediate notification so that investigators can do their job," Falconer told CBC News. "How could the family in the Minty shooting have any confidence in what these police officers have done when these kinds of shenanigans happen after the shooting?"

Questions about OPP notes in 2nd shooting

Levi Schaeffer, 30, pictured with an unidentified friend, was camping near Osnaburgh Lake, Ont., in June 2009 when he got into an altercation with the OPP, which resulted in an officer shooting twice and killing him. (CBC)Ruth Schaeffer is a grieving mother who is also part of the court fight against the OPP commissioner. Her son, Levi Schaeffer, 30, who suffered from schizoaffective panic and personality disorder, set off last spring on a bicycle trip from Peterborough, Ont., to Pickle Lake in northwestern Ontario.

On June 24, 2009, he was camping near Osnaburgh Lake when he got into an altercation with the OPP, which resulted in an officer shooting twice and killing Schaeffer.

His mother told CBC News she has been denied "any proper or believable answers" about what happened.

The only two witnesses were the two OPP officers, who, after the SIU began investigating, despite rules demanding they be segregated, both hired the same lawyer. They both prepared two sets of notes. The first set was supplied to their lawyer for review and were never disclosed to the SIU. Based on those, the two officers then prepared a second set of notes as their official "police memo book" record of events which they did hand over to SIU investigators.

"The idea that an officer would maintain two sets of notes … one that his lawyer sees and provides input on and a second that is provided to investigators simply is unacceptable," said Falconer, who is also representing Schaeffer's family. "This does nothing but fosters suspicions."

In September 2009, the SIU director concluded that in this case, "this note-writing process flies in the face of two main indicators of reliability of notes: independence and contemporaneity." As a result, Scott concluded he could not reach any reasonable conclusions about what actually happened the day Schaeffer was shot and killed.

Scott has written a number of times to complain to Fantino about the use of a single lawyer to represent numerous officers during SIU probes, given that police chiefs and the commissioner are duty bound by the Police Services Act to ensure officers are segregated when identified by the SIU as either subject or witness officers in a serious incident.

Fantino refused comment to the CBC while the case is before the courts. But in a Sept. 30, 2009, letter to Scott now included in the court record, Fantino denied any dereliction of his duties.

"Your position as director of the SIU grants you no authority over how police notes are prepared," Fantino scolded. "Direction in that regard comes from a complex interaction of the police service's policies and procedures, legislative requirements and the charter rights of all citizens."

NDP calls on Fantino to resign

Controversy over police co-operation has dogged the SIU since the agency's inception in 1990. Two reports by former judge George Adams identified the need for reviews.

In 2008, Ontario Ombudsman Andre Marin (a former SIU director himself) called for a ban on the use of a single lawyer representing multiple officers "avoiding any potential for witness information to be tainted or tailored, intentional or otherwise."

But the court case this week marks a new point in the fierce fight over police accountability, said NDP justice critic Peter Kormos.

"We have a very peculiar, unprecedented scenario where Ministry of the Attorney General's lawyers say the OPP commissioner Fantino broke the law in the course of an SIU investigation," Kormos told CBC News. "It is remarkable and it cries out for Fantino’s resignation."

Lawyers who represent police officers involved in SIU investigations say the practice of representing multiple officers and the use of two sets of officers' notes is a long-standing one.

"It's a tempest in a bad teapot and a waste of judicial resources," said Gary Clewley, a Toronto-based lawyer who has defended police officers for decades.

Last summer, he published an advice article in the Hamilton police union's newsletter, writing, "I was tempted to have a pencil manufactured with the slogan 'shut the F up' embossed on it so that when police officers began to write their notes they would pause and first give me or their association a call."

Clewley categorically rejects ever coaching officers to change or invent stories in their official notes.

The case goes before a judge in a Toronto court on Thursday.

Lawyer-approved police notes illegal, SIU says

May 11, 2010
Robyn Doolittle, Toronto Star

Judge asked to find OPP’s Julian Fantino violated Police Services Act

The director of the Special Investigations Unit has intervened in a landmark court case that will decide whether police officers routinely break the law during SIU investigations.

Ian Scott has asked a judge to rule it is illegal for officers to have their notes and comments “approved” by a police union lawyer before being interviewed by the agency, which investigates cases of serious injury or death involving officers.

Critics of this longstanding practice say it provides an opportunity for collusion. Police counter that officers are simply being granted the same rights as a civilian under the Charter of Rights.

Scott has also raised concerns about officers being properly segregated from each other after an incident. In a move that has set off a firestorm in the policing world, Scott has asked the Superior Court judge to find that OPP Commissioner Julian Fantino violated the Police Services Act for allowing this practice to continue.

If the judge agrees, this would open the door for police chiefs across Ontario, including Toronto’s Bill Blair, to face police act charges.

“This is a very significant development in attempting to ensure some level of accountability in SIU investigations. The absence of leadership has been a major problem in this area and frankly it accounts for why it has festered and continued for so long,” said lawyer Julian Falconer.

Falconer represents the families of two mentally disabled men fatally shot by OPP officers. Their families believe the OPP violated the police act during the SIU investigation. The case will be heard in Superior Court beginning Thursday.

In both deaths, officers who witnessed the shooting, as well as the officer who pulled the trigger, were instructed to delay writing their notes until after an association lawyer, Andrew McKay, reviewed them.

On June 22, 2009, Douglas Minty was shot five times outside his mother’s Elmvale home. The 59-year-old became distraught over an altercation with a door salesman. The officer would later say he saw Minty advancing with a knife. The SIU was not contacted until an hour and a half after the incident.

“In that time, the OPP received statements from the most significant eyewitnesses, had their media officer attend and had (the union involved),” according to court documents.

Two days after the Minty shooting, 30-year-old Levi Schaeffer was shot dead on the shore of Pickle Lake in northern Ontario. Officers were investigating reports of a stolen boat. In this case, all five officers involved shared the same lawyer and had a draft set of notes approved before submitting a final version to the SIU.

After a three-month probe, Scott announced that because officers in the Schaeffer case were not segregated and that because their comments were vetted by a lawyer, he had no reliable evidence to make a judgment. The officer was cleared.

“In this most serious case, I have no informational base I can rely upon,” Scott said at the time. “The first drafts have been ‘approved’ by a (union) lawyer who represented all of the involved officers in this matter, a lawyer who has a professional obligation to share information among his clients when jointly retained by them.”

In contrast, when police investigate civilian incidents, it is routine practice to immediately separate witnesses and suspects. Investigators do this to make sure witnesses’ memories aren’t tainted and to prevent suspects from fixing their story.

But unlike civilians, police officers are bound by a set of rules under the Police Services Act to cooperate with an investigation. For one, all witness officers must give an interview to the SIU. The subject officer may refuse. Everyone involved must write notes, but only the witness officers must hand them over. Herein lies the heart of the dispute between Falconer and the SIU versus Ontario’s police community.

The act states that police chiefs shall, whenever “practicable” segregate police officers involved in an SIU incident. “A police officer . . . shall not communicate with any other police officer involved . . . until after the SIU has completed its interviews.”

Falconer said police associations are using the Charter issue as a red herring. Police officers can have a lawyer without it being the same lawyer as the others involved.

“Furthermore, you will not find a credible constitutional lawyer who would argue that the Charter gives a right to counsel to a witness in a criminal investigation. That is completely absurd,” said Falconer.

Alok Mukherjee, chair of the Toronto Police Services Board, said Falconer and the SIU are just plain wrong.

“Falconer and Scott’s opinion on whether the Charter protects police officers in an SIU investigation, I have seen nothing either in the act or the Charter that supports their opinion,” said Mukherjee. “If anyone is raising a red herring, it is Falconer, Scott and their advocates in the media.”

Cornwall Police Chief Daniel Parkinson, president of the Ontario Association of Chiefs of Police, noted that if every officer involved in an SIU investigation had a different lawyer it would become “prohibitively” expensive.

McKay, who acted for the OPP in both shootings, said an important issue is being lost in the whole argument.

“We as lawyers have professional obligations. When I go in and speak to officer A, and he tells me what happened, and then I go speak to officer B, I don’t . . . say: ‘I just spoke to officer A, this is what he told me, what do you say?’ If there’s any conflict in the stories, I would leave and call another lawyer. That happens all the time.”

Attorney General Chris Bentley said Monday the ministry has not taken a position on the issue as it is before the courts.