Thursday, November 4, 2010

Critique of the Star's "Above the Law" series

The Toronto Star has been running an "ongoing series" of stories essentially alleging that police get away with murder, expressly alleging that they are treated differently than civilians doing similar things.

The police in Ontario are subject to scrutiny by the Special Investigations Unit (SIU), a civilian agency which investigates circumstances when police kill or seriously injure others. And the Star reporter - reporters named Henry and Bruser - is saying that they're not doing their jobs right.

Some of the Star's observations are fair. Police are treated differently from civilians.  But that's not necessarily surprising.  It's natural to suspect that, when a member of the public happens to have a gun and be in a lethal conflict situation, they probably had some responsibility for it - there isn't such an inference to be drawn, usually, when the police are involved.  We send the police into harm's way, and can't be surprised when they harm others and claim self-defence or defence of third parties.  (Of course, where police misconduct happens, it must be addressed very seriously.)

So let's go through the stories. Bear in mind that I know nothing of these fact patterns aside from what's in the Star's stories: I'm assuming factual accuracy in the reporting (which may not be a fair assumption - I do have some experience with the media), but readers should bear in mind that the Police Association lawyer has alleged that the reporting is inaccurate.

(1) Pedestrian killed by a cruiser

This one raised eyebrows for me at first.

A police officer hit and killed a pedestrian crossing at a crosswalk. No emergency circumstances justifying it, just a defence that 'the sun got in his eyes'. The Star observes that: "Instead of a criminal charge, Quijada-Mancia faced a far less severe form of justice after pleading guilty to discreditable conduct at an internal police disciplinary hearing." He lost a week's pay.

Seems pretty soft: Why shouldn't he have the same standard applied to him as a civilian would? Why wasn't he charged under the Criminal Code or at least the Highway Traffic Act? If I killed a pedestrian, I would certainly be charged, likely with dangerous driving causing death - a serious criminal offence. Of course, under the circumstances the Star describes, I doubt I'd be convicted: The test requires a 'marked departure' from the standard of the reasonably prudent driver. He wasn't going at an excessive speed, and he had what was characterized as a "momentary lapse in judgment". The legal nuances may be lost on Henry and Bruser, but a momentary lapse in judgment does not amount to criminal negligence. That's basically the defence, actually - back in my student legal aid days, I successfully challenged a careless driving charge (which has a lower threshold than dangerous driving) on the basis that the client's conduct was just a "momentary lapse in judgment".

And then, buried near the end of the story, is a little ambiguous reference to another point: He was also charged and convicted under the Highway Traffic Act, paying an additional monetary fine and resulting in demerit points.

Did he have an easier time of things than a civilian under the same circumstances would? Probably. But was his conduct criminal? Should he have gone to jail? On the facts presented by the Star, probably not.

(2) Police officer shoots suspect charging at her with a lawn chair

An officer was dispatched to arrest a suspect. Homeless, mentally unstable. He became aggressive and refused to cooperate. She tried to incapacitate him with pepper spray, but this was ineffective. She didn't have a Taser. It was a radio deadzone - no backup. He became increasingly violent, threatened to kill her, threw a chair at her, then charged at her.

Now, let's evaluate her options at this moment. Pepper spray? We already know it doesn't work. Engage him in hand-to-hand combat? Well, reading between the lines, it sounds like he was bigger than her. If she loses...well, she's probably dead. Even if he doesn't bludgeon her to death, he would then be able to grab her gun. Flee and leave a dangerous enraged guy alone, with the probability that he won't still be there when she finally comes back with backup, and let come what may from the fact that he's on the loose?

She shot him. And this is where she deviated from her training - she shot to wound. The injury still ended up killing him.

Professor Alan Young of Osgoode Hall says that a civilian never would have been able to invoke the doctrine of 'self-defence' under those circumstances. I'm not so sure...if you're packing, and a big guy is coming at you threatening to kill you, even unarmed, then it seems unreasonable to let him pummel you and take your weapon. I could be persuaded that there's an objectively reasonable fear of death in those circumstances.

But more importantly, the civilian right of self-defence comes with all sorts of other baggage like the duty to retreat. The officer was tasked to take this guy into custody, and entitled to use whatever force was reasonably necessary to do so. (Besides, a civvie in the same circumstances would have a hard time explaining how the circumstances arose.)

The guy attacked a police officer who was just trying to do her job. Yes, it's tragic that his mental illness yielded that result, but it's hard to criticize her conduct of the situation.

(3) Officer runs over teens lying in the grass

Two teens stargazing in a park. An officer patrolling the park in a marked cruiser. Runs over them, causing serious injury.

Not charged. The Star rightly points out that a civilian doing the same thing definitely would have been charged.

But there's a reason for that: Civilians aren't supposed to be driving around parks. Some laws - particularly driving-related ones - are relaxed for police in the execution of their duties. Not uncommon to see police patrolling park areas in their vehicles. The Star seems to suggest that there's something inherently wrong with the activity, that police should never drive off the road. I would suggest that there are good reasons to do so, including safety - in a large poorly lit park, a single officer or pair of officers could end up in trouble before even realizing it.

Should this fellow have seen the two teens who were lying in the grass? No, unreasonable to think that he would have. You'd think they'd have heard his engine and paid some attention, even if - as they claim - his headlights were off.

It's a tragic case. It could have been worse. But despite the Star's aspersions, it's hard to say that he actually did anything *wrong*.

(4) Accountant's arm broken during an arrest

Accountant stopped because his sticker's out-of-date. Moreover, the vehicle is registered as a different colour than it actually is. Oh, and he doesn't have his registration in the car, either.

So the police arrest him. It'd be hard to assail that decision. Did they have reasonable and probable grounds to believe that an offence was committed? Absolutely. They thought - quite reasonably - that the car was stolen, but in any event there were a couple of Highway Traffic Act violations going on.

What happened next? Well, all we have is the accountant's side of the story...but even then there are questions. He admits to mouthing off, telling them that they can't arrest him, etc. No word as to whether or not he struggled physically. The Star makes quite a topic out of the accountant's stature, that he's a little guy, etc., the suggestion seeming to be that he couldn't struggle meaningfully. But the story also says such things as that the police "tried to snap handcuffs around his wrists". Tried? With two police officers restraining him, shouldn't cuffing him have been pretty academic if he isn't struggling?

If you're physically resisting police who are lawfully arresting you, a broken arm isn't unexpected. I'm not saying definitively that he was, but this story is too one-sided with too many questions to conclude that the police did anything wrong under the circumstances.

(5) Interrogators break a prisoner's jaw

Fellow being interrogated for a serious crime gets beaten up in the interrogation room. At his trial, the judge found that he had been beaten. The Court of Appeal ultimately determined that the proceedings against him should be 'stayed' - i.e. that he should walk - because of this.

If true, this is serious misconduct. I say "if true", because the interrogator is currently awaiting trial for the assault. It's a higher threshold to prove the assault as against him than it was in the trial of the other fellow.

Interestingly, whereas the Star makes several allegations against the SIU of specific failings in his other stories, all he really says here is that they cleared the officers of misconduct and that the Court of Appeal tore into the SIU. The most specific failing alleged of the SIU by the Court of Appeal, however, is that it failed to reopen its investigation after the trial judge found misconduct. Which it now has.

This story reflects poorly on the officers involved, certainly. But the alleged offender is facing appropriate charges now. The phrase would be "better late than never".

Indeed, it isn't a surprising result. SIU investigators would have to be able to make a case with the potential to prove the assault "beyond a reasonable doubt". They would clear the officer if they don't think that they can do this. When the allegations are made in the context of somebody else's trial, however, it's a much lower threshold, and the judge can find as fact that the assault took place even if it isn't proven beyond a reasonable doubt. Technical, but it's a 'presumption of innocence' thing.

(6) Problem with Police notes

In a remote area, a mentally unstable man becomes violent towards police. According to the police, he pulled a knife, so they shot him.

Pretty academic if you accept their stories. And when nobody else was there, hard not to accept their stories.

In this case, the Star is actually on side with the SIU, in that the SIU took issue with the fact that the officers didn't write their notes until two days after the event, and only after conferring with a lawyer. Yep, that's the problem.

This story even breaks further with the trend, because in all of the other stories the Star is arguing that it's a bad thing that police are being treated differently from civilians. In this one, the argument seems to be that they shouldn't have the procedural protections everyone else has, like the right to counsel, or the right to remain silent.

(7) SIU doesn't ask the right questions

Same old story: Guy 'darts' at a police officer with a knife in hand, gets shot and killed.

Some factual issues - was the pocketknife open or closed? The officer, and witnesses, say it was open. After the fact, it was found closed. The officer says that the deceased's dying act was to close the knife. Yeah, a little odd, but no more so than a guy confronting police with a closed pocketknife.

The SIU gets flamed here for not asking for an indepth definition of the verb "dart".

There are questions here, different versions of the facts, but that's not unusual. It's a common occurrence in trials that you get two very different stories, but neither side is lying. People see things through different lenses, and memory twists the details and context. Here, the inconsistencies are actually pretty minor - one person says they saw something, another says they didn't notice such a thing. Nothing actually inconsistent about that.

And this officer himself admitted that his memory of the events were spotty. Again, not uncommon for high-intensity encounters or other traumatic experiences.

I don't really see what the Star is getting at in this story. The questions raised in it are minor points. The most critical question is this: Was the fellow going at the officer with a knife drawn? There are even corroborating witnesses that say "yes" light of this, it seems obscene to suggest that a few open questions and irregularities should result in the officer going to jail for the rest of his life.

Ultimately, this series reeks of 'a mountain of a molehill'. Okay, the interrogator case is bad. But the rest... Yes, police are occasionally going to shoot people. And it's very easy to second-guess their decisions to do so in many cases. In much the same way that it's easy to sit in a recliner and criticize Curtis Joseph for coming too far out of the net.

Now, I'm not suggesting blind acceptance that "the police know best", but we also can't too tightly fetter the ability of police to use lethal force to protect themselves and others against perceived threats.

Three of the seven involve shootings of people acting violently towards police. All three had serious mental issues. The Star plays this up, that these are sympathetic people being shot. Lots of quotations from family members. And yes, it's tragic when a schizophrenic puts himself in a position to get shot by police. It's not necessarily blameworthy conduct, from somebody with that kind of disease. But if a large mentally ill person is coming at me with a knife, then, even though I don't have any ill will to my attacker, I don't want the nearby police officer to reach for his baton.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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