Justice Denied

"There are two kinds of failures: those who thought and never did, and those who did and never thought." - Laurence J. Peter

For all of the criticism I have directed towards the Calgary Police Service in the past, I felt compelled to comment on the following story:

http://calsun.canoe.ca/News/Alberta/2008/08/09/6395061-sun.html

Constable Sean Hasson was acquitted of what originally proceeded to trial as an allegation against him of aggravated assault. The case against him was apparently pathetic...so much so that the Provincial Court Judge made comments which loosely paraphrased meant that it would not have been possible for any reasonable jury properly instructed to convict.

So I hope that the good constable is truly a beneficiary of the presumption of innocence and that he is not plagued in his return to work with lingering doubts on the part of his fellow officers or members of the public. As a believer in our system of justice, I am sure that he is entitled to that.

Now, as a defence lawyer, writing a column for Calgary Criminal Lawyers' Weekly, one might expect me to give praise to my colleague Willie DeWitt for his masterful defence of his client, but...no offence to Mr. DeWitt, and unable to resist the boxing reference...I cannot be sure that his opponent didn't simply throw the fight, figuratively speaking.

In fact, as a member of the public who was not in the courtroom that day, I cannot figure out what possibly could have happened here, but in my view, an example of justice this case is not. I don't say this because alleged police brutality went unpunished, rather, the bad taste in my mouth is owing to the apparent ineptitude of the Attorney General for Alberta as represented by the Province's Crown Prosecutors' Offices.

What possible explanations are there for what happened?

Maybe the Crown who recommended the charge of aggravated assault "did without thinking" and committed a serious injustice against Constable Hasson forcing him to face the ordeal of a criminal prosecution that had no reasonable likelihood of conviction?

Or maybe the Crown at large did properly think the case through but the prosecution "never did" do its job in preparing the case for trial and the injustice is to the alleged victim?

Or maybe a perfectly appropriate case did just implode for no apparent reason.

The problem is, how is the public to figure out which of the above it is?

Now, before going any further down this road, let me say one thing...the actual individual Crown Prosecutor of this case should be commended for throwing in the towel once it was apparent that the case could not be made. It is not an easy task to fall on your sword but it is one all good prosecutors should be prepared to do when the evidence just isn't there.

But here's the problem I continue to have; how is it possible that the Crown downgraded the prosecution just before trial to assault causing bodily harm, but was surprised that his own witnesses' evidence did not come remotely close to supporting even that lesser charge?

I mean, Witness #1 (the complainant) says he was sober and cooperative when the police officer broke his jaw with an intentional knee to the face. Witness #2 (the complainant's friend) on the other hand says the complainant was highly intoxicated and belligerent with the officers.

His own friend doesn't support the allegation?!?!?!?!?

Witnesses #3 and #4 (other cops) called by the Crown gave completely exculpatory evidence consistent with that of the complainant's friend.

And two constables who assisted Hasson in detaining Cerato while investigating a
fraud complaint, said the injured man became aggressive when he was asked to return to a bar to pay his tab. Both Const. Garry Jansen and Const. Joseph
Dalton said Cerato was clearly intoxicated and initially refused to come with them when asked to return to Len's Den to pay a $16 bill.

Dalton said Cerato swore at his partner repeatedly, while Jansen used "verbal judo" to coax him into co-operating. Cerato, who was speaking to the officers from the
second-storey balcony of the northeast apartment complex where he lived,
eventually agreed to meet them at the door. But when he emerged he continued to
be abusive to the officers, who now included Hasson, they said.

Both Jansen and Dalton, who were called as Crown witnesses, said Cerato took an aggressive stance. Hasson then pulled him to the ground and when Cerato continued to resist he was cuffed. During the struggle Hasson accidentally kneed Cerato's jaw,
Jansen said.

With all due respect, with this evidence this case never had a chance...and "the Crown" as an institution looks foolish for proceeding...especially where the accused was someone we actually expect to place himself in harm's way and to use force to apprehend suspected offenders.

As citizens, we should demand better. This case leaves the appearance of a "show trial"...the state going through the motions to prove to the public that it will not tolerate police misconduct. The only problem is, the state appeared to lack any reliable evidence of police misconduct!

I am the last guy to advocate turning a blind eye when police break the law...but I hope that I am also near the back of the line when it comes to running trials against accused police men and women in the face of insurmountable evidence to the contrary.

See No Evil, Hear No Evil - Do...Apparently Nothing

The Calgary Police Commission has found a way to metaphorically kick itself in the groin as evidenced by comments from the Commission chairman regarding the recent resolution of the outrageously long-lived citizen complaint of one Nancy Killian-Constant:

http://www.canada.com/calgaryherald/news/city/story.html?id=df016465-b504-4301-89ca-fd696e9a2091&p=1

Now, let me be fair here...Calgary Police Chief Rick Hanson has demonstrated tremendous skill and judgment in bringing this matter to a close in such a way that has prompted the complainant to state that she is, "...inspired and impressed with the Calgary Police Service."

Chief Hanson has demonstrated that by doing what ought to have been done right from the outset - apologizing and taking responsibility for what was at best police incompetence in an unlawful tactical entry of an innocent family home - even very bad mistakes can be forgiven.

But the feel-good nature of a Chief of Police making amends for the behaviour of his officers - which included highly suspect notebook alterations and a memo regarding same being exchanged at the upper management levels of the service - does not allow the Calgary Police Commission to join in the accolades.

The Calgary Police Commission is supposed to be an independent civilian watchdog which holds the Calgary Police Service accountable:

http://www.calgarypolice.ca/about/commission.html


Well, it may have civilian members, but this case makes the Commission look neither independent nor like a watchdog...maybe the "oversight" they talk about in their mission statement to them means failing to look at the Calgary Police Service as opposed to monitoring it?

Let me highlight just what I mean.

The Calgary Police Service has fought long and hard for 8 years against the efforts of Ms. Killian- Constant and her family to get justice for being victimized by the absolute rudder-less ship that was the group of sworn police officers who violated their home.

This long battle was waged by the Calgary Police Service notwithstanding that there was never any legitimate dispute that they messed up huge when they obtained and executed a dynamic entry search warrant for a drug operation that didn't exist based on an unverified tip from an individual who was feuding with the Killian-Constant family at the time.

Where was the oversight of the Calgary Police Commission during those 8 years? Why were the independent citizens not intervening and making then Chief Jack Beaton and the officers involved take responsibility? Why were the victims being victimized again?

Why was the Calgary Police Service given free reign to apply to the Law Enforcement Review Board asking for $15,000.00 in legal costs to be paid by Killian-Constant due to her "frivolous and vexatious" pursuit of her claims of wrongdoing only to a couple of years later have the Calgary Police Service enter into a secret settlement agreement with the family, topped cherry-like by a public apology from the Chief of Police?

The Calgary Police Service was either wrongly fighting the battle then, or they have wrongly thrown in the towel now...I think that the citizens of Calgary are entitled to know which it is.

For its part, the Calgary Police Commission had this to say:

Calgary police commission chairman Denis Painchaud said the Killian Constant case also highlighted the need for better public oversight of the police.

"Obviously, you have to give a lot of credit to Miss Constant and their family. They were persistent, courageous and diligent," he said. "It was frustrating for us, but hats off to her for staying with it because, at the end, everybody learned from this."

What?!?!?!

Well, who does the Commission think ought to take the blame for there not having been "better public oversight"? And now what the service called frvolous and vexatious (which the LERB agreed with) is called persistence, courage and dilligence which is deserving of "alot of credit"? Take our ceremonial white hats off to Nancy for "staying with it"..."it" presumably referring to the previously-dubbed frivolous and vexatious complaints?

This doublespeak is truly remarkable for its level of absurdity.

And who is the "us" that were frustrated by Ms. Killian-Constant? See, if she was right about the improper police conduct (as the Commission chair suggests in his thanking her for the learning experience) then why would the Police Commission be frustrated by that? Again, the perception is that the Commission has aligned itself in its identity with that of the Police Service...rather than as its watchdog.

In my view, while this settlement represents a positive for the individual complainants, it does nothing to garner public confidence in the citizen complaint system...it does just the opposite. How many average citizens would have the financial and emotional resources to pursue their righteous cause through 8 years of hell? What if the police service doesn't give up so easily next time?

No, it seems to me that we are the point where if you want police accountability, go get it yourself...I mean, let's face it, that's exactly what Nancy Killian-Constant did. Did the office of the Chief of Police provide it? No. The Calgary Police Commission? Hardly. The Law Enforcement Review Board? Well, I guess we'll never know since those proceedings were ended by the settlement.

And sadly, we are not alone in this state of official police non-accountability:

http://www.canada.com/vancouversun/news/westcoastnews/story.html?id=506a36a6-bbc2-4f8a-a941-46d2a1d0b85c

The B.C. Civil Liberties Association and Pivot Legal Society will no longer refer people claiming to have been wrongfully abused by Vancouver police to the office of the police complaint commissioner.

In the past, both organizations would help people make complaints to the OPCC, but that process didn't work, policy directors for both groups said Thursday.
"The system is broken. People don't have confidence in the process and they feel they aren't being treated fairly," said the B.C. Civil Liberties Association's Michael Vonn.

...

While the boycott is in place, Pivot and the civil liberties association will process allegations against the police through small claims court.

Five such claims have been launched by Pivot within the past year, said King. Two were settled out of court while in July 2007 a third resulted in a successful action against a police officer for unlawful detention with a judgment of $5,500 being awarded, he said. Two of the cases are still to be dealt with, he said.

"There have been monetary settlements and we feel that when a judge makes a ruling -- and it's public -- then the police department will take the incidents a lot more seriously and dish out more appropriate punishment to the officers," said King.

I can't disagree with that.