Fudging the record
Nothing shakes public confidence in Canada’s justice system more than seeing a judge question a police officer’s credibility on the stand. It casts a shadow over the proceedings. And it can lead to criminal cases being thrown out.
That’s just what happened when Justice Jane Kelly of Ontario’s Superior Court recently tossed out a case involving Collin Taylor, a Toronto man facing gun, knife and marijuana charges. Justice Kelly found that Toronto police Const. Juin Pinto, one of the arresting officers, was “unreliable and not credible” when he said he smelled marijuana in Taylor’s car, leading to an unlawful arrest and search that turned up the weapons and drugs.
Moreover, as reported by the Star’s Jayme Poisson and Wendy Gillis, Justice Kelly also faulted Pinto for failing to comply with his obligation to disclose the full details of his own disciplinary record to the court so that his credibility could be weighed. That record included insubordination and discreditable conduct. But rather than provide the full details Pinto submitted a “materially misleading,” watered-down document that had a negative impact on his credibility and on the reliability of his evidence, the judge found.
That left David Bayliss, Taylor’s lawyer, arguing that “the system for disclosure . . . is broken.” He has a point.
Back in 2009, the Supreme Court required police to tell prosecutors about findings of serious misconduct against them that could “reasonably impact” the case against an accused person. Police must submit a one-page report that summarizes relevant misconduct and discipline under the Police Services Act, and criminal convictions, to help the court assess their credibility.
Some police forces, including Peel, York, Halton and Durham, wisely have their professional standards divisions or other trained specialists prepare the reports. But the Ontario Provincial Police and Toronto police let officers prepare their own reports. In the Pinto case, his failure to make a full disclosure left Justice Kelly questioning his credibility.
The Toronto police and OPP need to clean up their act, and adopt the “best practices” that other forces use. No judge or defence lawyer should have to wonder whether a police officer may be sanitizing a checkered history, or whether the Crown is providing diligent oversight. There are ways to make sure that credible, appropriate information is put squarely before the court. The police should use them.
The system for disclosing police misconduct records in court must be fixed