Betsy Powell, Peter Small, Toronto StarAugust 2, 2008
Cases show double standard, critics sayA Toronto judge acquits two men of firearms charges, finding that police testimony was “unreliable, likely false.” In another courtroom, a judge convicts a prominent community activist of perjury, ruling that she deliberately misled the court.
These two recent court cases highlight the rarely prosecuted offence of perjury. For some in the legal community, they also raise questions about double standards, how often police lie on the stand and how infrequently they face charges.
This past week, supporters of activist Valarie Steele, found by a judge to have lied to get her son released from custody, wondered aloud if she should have been charged at all.
Also this week, the province’s Special Investigations Unit announced it is probing the case of Shayne Fisher, 24. Fisher and another man were acquitted after Superior Court Justice Brian Trafford ruled in June that the men were “physically abused” by Toronto police drug squad officers during a raid.
“Important parts of the evidence tendered against the defendants, at the preliminary hearing and at trial, have been found by the court to be unreliable, likely false,” Trafford wrote.
Defence lawyers point to other examples of judges acquitting people because of unreliable testimony from police. It even has a name: testilying.
A case often cited is that of Kevin Khan, acquitted on drug charges by Justice Anne Molloy in 2004. She found two Toronto police officers, including Det. Glenn Asselin, used racial profiling when they stopped Khan and later “fabricated” evidence.
“I quite simply do not believe the evidence of the officers,” she wrote in her judgment.
Asselin was investigated internally and cleared. He remains with the force as a detective.
Then there’s the high profile case of the three officers who testified at the 2005 assault trial of Toronto police officer Roy Preston.
Ontario Court Justice Peter Wilkie convicted Preston after finding him to be “neither credible nor reliable.”
Wilkie also found the evidence of the three officers who testified on Preston’s behalf to be “vague,” “contradictory” and “fundamentally unreliable.”
Preston went to jail after losing his appeal. He is suspended without pay and faces disciplinary charges and could be fired.The three officers were investigated and cleared by their superiors.
In the Steele case, police wiretaps caught the activist saying her son, a witness in the Jane Creba murder case, wasn’t adhering to his bail conditions on unrelated charges. In court, she had indicated the opposite and was subsequently convicted of perjury.
Supporters argued she was being punished for her son’s unwillingness to co-operate.
Academics throughout North America have found the police culture encourages lying.
“When officer self interest, and/or the bond of the `thin blue line is challenged,’ as in a disciplinary proceeding, overt lying is widely recognized as a common occurrence,” Dianne Martin, the late Osgoode Hall law professor, wrote in a 2001 paper.
Defence Lawyer Edward Sapiano says police knowingly commit perjury because of what he calls “noble-cause perjury.”
“Police knowingly give false testimony to facilitate the prosecution and to ensure the conviction of persons the police ‘know’ are guilty. Because police so easily get away with noble-cause perjury … police quite reasonably believe they are being encouraged to lie by the administration of justice itself.”
An assistant Crown attorney, who spoke on the condition of anonymity, didn’t disagree.
“You would expect … police witnesses to have a stronger regard for the oath but people lie in court all the time, police officers included.”
“There is an attitude that the legal system is just a bunch of bulls— invented by lawyers and … the oath doesn’t really bind anyone’s conscience, in some quarters. I’m not saying every cop is like that but I’ve certainly had the impression over the years that there are many that do feel that way.”
Gary Clewley, a defence lawyer who often represents police officers charged with crimes, says it’s “ridiculous” to suggest that judges and Crowns tolerate police perjury because officers perceive it to be a legitimate means to an end.
And just because a judge finds an officer “likely” gave false testimony, doesn’t mean he or she lied.
“There’s a world of difference between saying `I’m not satisfied sufficiently to deprive somebody of their liberty based on the evidence’ and the officers are outright liars.”Sapiano says it’s rare police are charged either internally or criminally, “even when sufficient evidence exists, and apparently only … when a defence lawyer catches them lying and it makes the front page of the newspapers.”
Christopher Downer, a former Toronto detective who used to investigate allegations of misconduct against court officers, remembers a case where two police “buddies” of a court officer charged with assault lied on the stand. “I sent a package off to internal affairs: nothing was ever done.
“No one’s aggressively going after anyone and at the end of the day nothing happens.”
“That’s not the case at all,” responds George Cowley, director of legal services for the Toronto Police Service. He points to the case of Amar Katoch, a veteran Toronto officer charged with assault, perjury and attempt to obstruct justice by his employer after a videotape of an anti-poverty protest in 2003 showed him punching a protester.
“There’s no apathy at all. We’re very concerned about comments made by judges,” Cowley said.
Katoch was acquitted by a jury last fall. The Crown is appealing.
In the Khan case, Molloy’s comments about Asselin were “troubling,” Cowley says. “We thoroughly looked into the entire matter and it was determined that there was no evidence to support either criminal or Police Services Act charges.”
While the Ministry of the Attorney General failed to respond to questions about the number of perjury charges laid against police, two Ontario police officers facing perjury charges will be in court this fall.
This month, OPP Det. Sgt. John Cavanaugh goes on trial in Toronto. In September, a preliminary hearing is scheduled in the case of Peel Region Const. Sean Osborne.
Despite these cases, the reason so few perjury charges are laid is because “it’s only in the most clearest of cases when the evidence is there” that it’s worth pursuing, says Avtar Bhangal, the lawyer who represented Sunny Bains, who Osborne is alleged to have assaulted.
“There are lots of cases where people are found to fudge the truth – it’s a different standard to actually prove that they intentionally did perjure themselves.”