Monday, January 19, 2009

"Ministers of Justice" Must Actually Seek It - SCC orders police misconduct out of the closet

It is a public scandal that offends; to sin in secret is no sin at all.
- Moliere, 1622-1673

I suppose in criminal law it happens more often than in other disciplines, but it is still relatively rare for a lawyer to read a judgment and immediately know that it will in time be seen as one of the most influential cases in Canadian law.

I am sure I do not overstate the epiphany that is the unanimous decision of the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3 which was released on January 16.

In a nutshell, the facts of McNeil are pretty simple...he was convicted of possessing marijuana and cocaine for the purpose of trafficking based heavily on the evidence of Constable Hackett...who himself had been professionally disciplined under the Police Act and charged criminally for "drug related misconduct". The problem for McNeil was he didn't get to know about this key information until after he was convicted.

Thinking that his appeal of conviction might be assisted with the introduction of the police disciplinary records and criminal investigation documents as fresh evidence, McNeil sought production...perhaps even believing that he would be assisted by the Crown in his search for truth as suggested in this quote from R v. Boucher, [1955] S.C.R. 16, adopted by the unanimous SCC in R. v. Stinchcombe, [1991] 3 S.C.R. 32:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

Further, in Boucher, Rand J. had quoted with approval from the 1865 judgment in R. v. Ruddick where it was noted that prosecuting counsel should consider themselves to be "ministers of justice" rather than to focus on winning a conviction.

Alas for Mr. McNeil, notwithstanding that the documents he sought were in the possession of both the Barrie Police Service and the provincial Crown prosecuting the criminal charges against Hackett, "[b]oth entities resisted production, and the federal Crown supported their opposition to the motion."

I repeat my opening quote, "It is a public scandal that offends; to sin in secret is no sin at all."

The Court of Appeal of Ontario ordered production of the documents and so the Crown appealed further. Mootness, an amicus curiae, residual expectations of privacy and a bunch of other things get addressed but the bottom line is that the SCC was asked to decide when and how records and information of police misconduct ought to be disclosed to accused persons.

The SCC reaffirmed essentially everything that it has said previously in Stinchcombe and subsequent cases, including drawing an appropriate distinction between the prosecuting Crown and other "3rd party" state entities. Where the epiphany comes for me is at lucky paragraph 13 where Charron J. writes that the prosecuting Crown has an:

...obligation to make reasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted. The Crown and defence in a criminal proceeding are not adverse in interest for the purpose of discovering relevant information that may be of benefit to an accused. gets better...

Not only does the oft-cited but (in my experience) almost never followed Boucher quote get meaningful reiteration, but the so-called "ministers of justice" not only have to look for relevant information that might assist the accused, but the police and other investigating authorities actually have a corollary obligation to provide such information...BEFORE THE CROWN OR DEFENCE EVEN COMES LOOKING FOR IT!:

The necessary corollary to the Crown's disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force...acts on the same first party footing as the Crown.

...records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the "first party" disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused...

Charron J. continues even further at para. 49:

The Crown is not an ordinary litigant. As a minister of justice, the Crown's undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so.


The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case...the Crown and defence are not adverse in interest in discovering the existence of an unreliable or unethical police officer...

And, yes, it even gets better at para. 53:

...Obviously, the accused has no right to automatic disclosure of every aspect of a police officer's employment history, or to police disciplinary matters with no realistic bearing on the case against him or her. However, where the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance.

...findings of police misconduct by a police officer involved in the case against the accused that may have a bearing on the case against an accused should be disclosed.

And just to ensure that an appropriate cherry-like morsel of prose is placed atop the judgment, Charron J. wraps up with this statement of principle at para. 59:

...Where the information is obviously relevant to the accused's case, it should form part of the first party disclosure package to the Crown without prompting. For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent on the police force, in fulfillment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action.

For those of us practicing criminal law, it should not be difficult to see how brilliant Charron J.'s judgment is. We all have had our opportunity to catch an officer on the stand, wrapped up in a lie or attempting to strengthen her evidence by "remembering" reams of details that are not in her notes. But we have absolutely no idea how many of these officers have been disciplined for dishonesty to their superior officers, or for failing to follow use of force policy (i.e. excessive use of force during arrests) because almost all of these matters are done in private hearings with no published statement of findings of guilt.

If we ever do come across such matters, it is clearly "happenstance" to use Justice Charron's term, and far from the police and Crown taking steps to align in interest with the accused in exposing unreliable or unethical police officers, the opposite is almost always the case. Well, Charron J. has cracked the "code of silence" it would seem.

For those of you who may be Crown attorneys or just regular defence-lawyer hating citizens and who think that disclosure of police misconduct is either already done as Boucher would suggest it ought to be, or is some kind of unfair notion that police should be "on trial" instead of the accused, or that police can just be outright trusted to do the right thing, I offer you a striking example from Calgary's finest.

I have previously written of the injustice that was the Killian-Constant case where police did a paramilitary dynamic search warrant for a grow-op that didn't exist based on a warrant obtained on no proper grounds:

What I did not criticize in that article was the misconduct demonstrated by then Cst. Ian Vernon with respect to altering his note book to add grounds for a search warrant after the botched raid turned up nothing but the makings of a law suit and complaints to the Law Enforcement Review Board.

Throughout the 7 year long legal battle a memo surfaced through Freedom of Information Act requests that showed just how the Calgary Police Service responded at the highest ranks when they found an officer possibly fabricating notes.

They reported it right away to the Crown right? Nope.

They disclosed it to the defence lawyers who were acting for the persons accused in Cst. Vernon's debacle right? Nope.

Instead, then Inspector (to become Deputy Chief) Hornby wrote to then Deputy Chief (now Chief) Rick Hanson as follows:

"I have a situation where I believe an officer's notebook has been modified improperly that may bring the service into disrepute,"

"If the defence recognizes the change and learns a warrant was obtained in this manner, it could have serious repercussions on any testimony Const. Vernon may give, now or in the future,"

I repeat again, "It is a public scandal that offends; to sin in secret is no sin at all."

What is striking about this example and the SCC decision in McNeil, is that the very existence of this memo demonstrates the relevance of this incident (and subsequent internal discipline for violating the CPS note-taking policy) and ensures that on every case that officer Vernon participates from now on that this should form part of the Crown's standard disclosure.

I suggest that the McNeil case will become so influential because it will serve to accomplish a number of things:

1. Accused persons alleging police misconduct will actually have a chance to get relevant information on point.

2. Judges and prosecutors will actually start to see proof (that has always been in the possession of the police) of many assertions of police misconduct that were previously chalked up to vexatious fabrications by unscrupulous accused.

3. The internal police disciplinary process will no longer be a meaningless exercise in futility for complainants.

4. "Bad cops" might actually choose not to misconduct themselves for fear that their reputations may actually include what were previously items that just stayed in the closet.

5. "Good cops" will be distinguished more readily from the bad and enjoy the reputations they deserve without having to share such reputations with officers who misconduct themselves.

Maybe there will be many other spin-off results as well, I guess only time will tell (e.g. does Homefront disclosure simply become part of Stinchcombe given that Crown counsel will clearly know them to be in possession of relevant information...and they are right there in the courtroom so it is clearly feasible to inquire).

For now, I'm off to start writing some follow-up disclosure letters...


Anonymous Anonymous said...

wow...this was a mind blowing bookmarking your website...fantastic!

9:10 p.m.  

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