How charges against cops can affect other cases
Officer accused in Whitby beating is key witness in drunk driving trial that is now in jeopardy
Two days after Toronto police Const. Michael Theriault was arrested and charged with aggravated assault, assault with a weapon and public mischief in the violent beating of Whitby teen Dafonte Miller, he was supposed to take the stand in a Scarborough courtroom.
He was the sole witness in a routine impaired driving trial, and his testimony could make or break the case. But, to the surprise of the Crown prosecutor, Theriault didn’t show up. The prosecutor also wasn’t notified of the charges and that a subpoena — not usually required for police witnesses, since testifying is part of their job — might be needed given that Theriault has been suspended with pay.
The trial was adjourned and the case is now in jeopardy over concerns that the delay has been unconstitutionally long.
In another impaired driving case in which Theriault is a central witness, a hearing was held last month because the defence lawyer wants the court to allow her access to information about the investigation into Theriault by the Special Investigations Unit, the province’s police watchdog.
She also wants the court to permit her to cross-examine him about the mischief charge he faces for allegedly misleading the police.
Theriault’s credibility is a critical issue since he will be testifying about observations he made about the driver, defence lawyer Tina Kaye argued at the hearing.
“Especially when you are dealing with an allegation of dishonesty and one that is so important as here. This officer is alleged to have misled an investigation . . . it is serious,” she said. “I can’t imagine a judge not permitting cross-examination on that point.”
What is happening in Theriault’s cases demonstrates the ripple effect that can occur when an officer is criminally charged or charged under the Police Services Act.
When that happens, Crowns may reassess cases involving those officers to ensure there is still a reasonable prospect of conviction. Sometimes charges are stayed; sometimes — as with these two cases involving Theriault — the Crown decides to proceed.
It is unknown how many charges are stayed or how many acquittals occur because a police officer involved in the case faces charges in another. The Ministry of the Attorney General and the Public Prosecution Service of Canada said they do not monitor that information.
Charges and even convictions don’t preclude an officer from testifying.
In a highly unusual instance, James Forcillo testified in an impaired driving case after his conviction for the attempted murder of Sammy Yatim.
(Strict limits were imposed on crossexamining Forcillo about the conviction, but the judge ended up with significant concerns about the reliability of his evidence. The judge found Forcillo almost immediately decided the accused was a drug addict based on what Forcillo described as “meth face” and that he “failed to take into account anything which might contradict his assumption, a perfect case of tunnel vision.”)
A defence lawyer can seek to cross-examine police officers on the charges they are facing, but the resulting information may not be much help to a judge, since the defence lawyer cannot try to prove the allegation in court in what would amount to a mini-trial, Theriault’s lawyer, Michael Lacy, told the court during the recent hearing.
“Is (my client) supposed to wait until a finding is made?” Kaye responded in her final submissions.
Both Lacy and the Crown opposed the application for the defence to get information about Theriault’s charges and for Theriault to be cross-examined about them. Lacy was permitted to make submissions because Theriault’s records were being sought.
A decision on whether the defence will be able to obtain the records and crossexamine Theriault will be released on Thursday.
Aseparate issue can arise if a judge rules that an officer lied or stole, but the officer is not charged.
Those judicial findings are not admissible in other cases, defence lawyer Daniel Brown said. That means a finding by a judge that a police officer stole or lied in one case can’t be used in another case.
“It’s troubling,” he said. “These officers are effectively shielded from their prior misconduct as long as a conviction against them isn’t registered for perjury or theft.”
University of Windsor law professor David Tanovich has argued that the Court of Appeal decision establishing that rule should be revisited since in most cases where a police officer is found to have lied, no charges are laid.
Take the case of a Peel Region officer who stole a statue of movie character Tony Montana while executing a search warrant and lied about it in court during a drug case, along with three other officers. Ajudge stayed the drug charges at the end of May as a result. An internal investigation is ongoing. No charges have been laid against the officers.
Defence lawyer Kim Schofield, who represented the accused in that case, said she recently had a case where serious drug charges were stayed by the Crown because of the involvement of the same Peel officers. Anecdotally, she said, she is aware of at least a dozen similar stays and says it’s an example of the system working fairly.
Sgt. Joshua Colley, a spokesperson for Peel Regional Police, said he was not aware of charges being stayed but said he would be surprised if that was happening based only on the findings of one judge.
Schofield said the case is unique because the Peel officers were involved in obtaining search warrants — and if the person who swore the search warrant can’t be trusted, there is no case.
“If they are liars and they are swearing out informations to obtain (search warrants) to get in the door of someone, those cases are gone,” she said.
Brown said he has noticed judges at the Brampton courthouse are also being particularly attentive to cases involving those officers.
Brown criticized how secretive the process is, with decisions made behind closed doors. “How many cases are impacted by these officers’ actions?” he said. “The Crown attorneys won’t say which cases they are or aren’t prosecuting or the reasons justifying those positions. It becomes an extremely opaque process and no one is accounting for these officers’ actions.”