Peel Police slammed in beating Hamilton suspect

Source: The Spec
July 01, 2010
Tracey Tyler
Torstar News Service
The Ontario Court of Appeal has condemned the “horrendous” conduct of two Peel Region police officers who beat a Hamilton man suspected in a string of Mississauga home invasions, leaving him with a broken jaw and permanent disability.

Jason Tran said the officers who were transporting him to a Peel police station back in 2003 had warned him it would be “the hard way” if he asserted his right to silence and refused to provide a statement.

His decision to follow his lawyer’s advice and say nothing left him with a broken jaw and headaches that still persist.

“Regardless of whether the officers abused Tran to obtain a confession or for some other reason, the essential fact is that they beat him up,” Justice Gloria Epstein said in a decision released late Wednesday.

“Their conduct was despicable regardless of its motivation.”

The court called it shocking no disciplinary action has ever been taken against the officers, who tried to cover up the incident and lied about it later in court.

A three-judge appeal panel also had harsh words for the Crown, for appearing to shrug off the incident after a trial judge concluded Tran was severely beaten and rejected the officers’ story about how it was that he ended up beaten and bloodied in a police interview room.

Justice Michael Tulloch ruled during a pre-trial motion in 2006 that Constable Will Vander Wier had delivered the blow to Tran’s jaw

After the judge’s decision, the Crown continued on as if nothing had happened, inviting the officer to remain seated at the counsel table, beside prosecutors, for the trial.

“The Crown’s conduct was evocative of an alignment with the police, notwithstanding the abuse,” said Epstein, with Justices Robert Sharpe and Janet Simmons agreeing.

The appeal court said the only remedy was to enter a stay of proceedings, effectively quashing Tran’s conviction for conspiracy to commit robbery.

Tran, whose jaw had to be wired shut, was so badly injured that he now bites himself when he eats, has a sore jaw and loose teeth and suffers migraines.

Yet the appeal court was told during oral arguments in January that, despite Tulloch’s findings of serious brutality, no further action has been taken against the officers.

The province’s Special Investigations Unit had launched an investigation, but closed the file without charges on June 6, 2003 and refused to say why, citing confidentiality.

During Tran’s trial in 2006, a lawyer for the SIU advised the court that the unit’s director, John Sutherland, had concluded there were no reasonable grounds for believing the officer had committed any criminal offence.

“It is difficult to understand why or how those responsible for investigating the incident could continue to maintain that there are no reasonable grounds to proceed,” Epstein said.

Tran was found guilty after a 40-day trial in 2006 of conspiring with eight other people to carry out a series of home invasions in the Mississauga-Hamilton area over three months in 2002.

The court was told they were wearing disguises when they were transported to targeted houses by van.

The robberies were apparently aimed at drug dealers who allegedly owed money. But elderly women and an 8-year-old girl were among the victims.

One woman was sexually assaulted and another was told she would be shot if something went wrong.

A man inside one of the homes had a dollar sign carved into his back with a knife by one of the robbers, who also tried to cut off the man’s finger.

Tran turned himself in to Hamilton police on March 27, 2003.

He said officers began telling him on the drive back to Peel that they didn’t want to hear anything about him not wanting to make a statement. At the police station, he was shoved and punched in the ribs and jaw, he said.

During a pre-trial motion before Tulloch three years later, the officers denied assaulting Tran and claimed to have found him on the floor, handcuffed and bleeding from the mouth, after leaving him alone in the interview room for a while.

One of the officers, identified as John Conway in the appeal court’s decision, testified that it looked as though Tran had bitten his lip and that Tran had explained his presence on the floor by saying, “I don’t know, I guess I fell.”

Tulloch, the trial judge, didn’t believe the officers.

The medical evidence showed Tran’s injuries were consistent with a blow to the jaw, not falling on the floor.

Under the circumstances, Tulloch had only two options: to stay the charges against Tran; or to reduce his sentence in recognition that his Charter rights had been seriously violated.

Tulloch opted for the latter, reducing a 28-month sentence by half and giving Tran 14 months plus three years probation.

The trial judge justified his decision by noting that the charges against Tran were serious and society has an interest in seeing these cases through to the end. While the abuse he suffered cannot be condoned, his beating at the hands of police did not affect the quality of the evidence used against him, Tulloch said.

But the appeal court said that didn’t go far enough.

Society’s interest in prosecuting a case is outweighed this time by the affront to decency and fair play caused by the officers’ serious abuses, it said.

“It is essential for the court to distance itself from this kind of state misconduct — an unwarranted, grave assault causing bodily harm, delayed medical attention, a cover up that included perjury, a prosecutorial response that affected the perception of trial fairness and no effective response,” Epstein said.

“Not to do so would be to leave the impression that it tacitly approves of it.”

The court dismissed appeals brought by two of Tran’s co-accused, Hoa Dang and Robert Johnson.

Peter Zaduk, Tran's trial lawyer, said he has been on bail but under virtual house arrest for the past three years, pending his appeal.