Charges with­drawn against 4 Toronto cops

Le­gal ex­perts ac­cuse Crown of pre­ma­ture dis­missal of case that raises ques­tions of po­lice con­duct

Toronto Star - - FRONT PAGE - WENDY GIL­LIS CRIME RE­PORTER

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

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