Tuesday, August 19, 2008

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.

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