Charges withdrawn against 4 Toronto cops
Legal experts accuse Crown of premature dismissal of case that raises questions of police conduct
A high-profile case involving four Toronto police officers accused of planting heroin on a car dashboard then falsifying court testimony has collapsed before going to trial, after the Crown withdrew the more than two dozen perjury and obstruction-of-justice charges.
Despite the charges being prosecuted with “energy and determination,” Crown attorney Jason Nicol told the court Thursday that a series of disclosure setbacks had caused delays too significant to proceed to trial as planned early next year.
The move means Const. Michael Taylor, Const. Benjamin Elliot, Const. Jeffrey Tout and Det.-Const. Fraser Douglas walk before their case can be tried in court.
Nicol acknowledged the case dealt with “very serious” allegations against police. But he nonetheless felt he had no choice but to withdraw the charges due to the delays, which were caused by information sharing problems between prosecu- tors and Toronto police professional standards, the unit that conducted an internal investigation that led to the charges.
As lawyers for the accused officers commended the move, some legal experts accused the prosecutor of “folding the tent” prematurely.
They say there were other options to prosecute the case, one that raises critical issues about police conduct and the administration of justice.
“You have the police who screwed up their own disclosure obligations? It just stinks,” said Kim Schofield, whose client Nguyen Tran was the officers’ alleged victim and whose case blew open allegations against the officers.
Schofield said the withdrawal of the charges allows the system “to hide things by screwing itself up.”
“There are no technical wins. There’s wins and losses, and this was definitely a win. The officers maintained their innocence, right from the get-go.” PETER BRAUTI LAWYER FOR ONE OF THE OFFICERS
“It seems Kafkaesque to me,” Schofield said.
“Given the significance of this case, I do not understand why the Crown is giving up at this point,” said Toronto lawyer Peter Rosenthal, who was not connected to the case.
Outside Ontario Superior Court, Peter Brauti, Taylor’s lawyer, called the withdrawal a decisive win, denying that the officers were let off through a kind of legal technicality.
“There are no technical wins. There’s wins and losses, and this was definitely a win. The officers maintained their innocence right from the get-go,” Brauti said.
Brauti added that the officers were prepared to have their trial, and he was confident they would have been found not guilty had it happened. “They are presumed to be innocent,” he said.
It’s not clear when, or if, the officers will return to regular duty. Mike McCormack, president of the Toronto Police Association, said he would be having discussions with Toronto police about the officers’ return to work, saying, “I think they should be brought back to duty.
“This is the way the law should be administered. People have their rights and we think justice was done today,” McCormack said.
All four officers have been suspended with pay since January 2016, when Toronto police chief Mark Saunders announced the charges against the officers at a sombre press conference. All face professional misconduct charges under the Police Services Act, a move that Nicol said “could serve, in some measure, the public interest.”
Toronto police spokesperson Mark Pugash declined to comment on the Crown’s withdrawal of the charges.
“It’s up to them to speak. They do make a point that our professional standards officers investigated this vigorously,” he said, citing comments made by Nicol about the service’s commitment to probing the case “with a view to rooting out the truth.”
Charges against Elliot, Tout, Taylor and Douglas stem from a damning 2015 ruling from a Toronto judge, which found the officers planted heroin in a suspect’s car to justify a search, then “colluded” in their testimony in court.
“There is too much falsehood, and too many unexplained and otherwise unexplainable elements in the police testimony,” wrote Justice Edward Morgan, calling their misleading testimony and actions “egregiously wrongful conduct.”
A subsequent investigation by Toronto police’s professional standards unit resulted in a total of 25 charges against the four officers. Elliot, a 10year veteran of the force, faced 10 of those charges.
But Nicol told the court Thursday that complications arose surrounding the disclosure of evidence to the officers’ lawyers, including the inadvertent release of privileged information. Nicol did not detail the nature of the information, but called it “difficult and complex.”
Issues date back to March, when the Crown received notice that privileged information had inadvertently been disclosed. Thus began a backand-forth between the Crown and Toronto police.
Flip-flopping within Toronto police over what could and could not be disclosed led the Crown to decide that it had a duty to review and reexamine its own “voluminous” case and conduct a “painstaking and detailed reappraisal.”
If the case were to proceed, it would be delayed at least until late fall of next year, Nicol said. If that were the case, it would exceed the strict new timeline limits placed on criminal trials in a landmark Supreme Court of Canada case known as R v. Jordan.
Daniel Brown, a Toronto criminal lawyer not connected to the case, said the case may have been a candidate for some of the exceptions under the Jordan ruling, which does ease time limits in exceptional circumstances. Nicol said there was not a realistic prospect of succeeding if he applied for such an exception. But Brown said the Crown “folded the tent” before even exploring whether the exceptional circumstances could have justified the delay.
“That the Crown attorney on such an important case would simply give up in the face of these issues is shocking and disheartening,” Brown said. Wendy Gillis can be reached at wgillis@thestar.ca