Should police who kill be named? Ontario court to consider if cops not charged should be kept anonymous

Should police officers who fatally shot a mentally ill man in crisis have their names shielded from the public?

That's the question facing Ontario's Superior Court of Justice as a hearing gets un‐ derway Tuesday in a lawsuit by the family of Ejaz Choudry, a father of four with schizo‐ phrenia shot and killed by police west of Toronto after his family called a non-emer‐ gency line for help.

Lawyers for the five Peel Regional Police officers in‐ volved in the death of the 62year-old in June 2020 - in‐ cluding one who fired two bullets into Choudry's chest after his family called a nonemergency line when he was in crisis - say publishing their names could put them and their families at risk.

Lawyers for the family say there is no credible risk to the officers and that a publi‐ cation ban would infringe on the public's right to know the identities of the officers en‐ trusted with the powers that ended with Choudry's death and the media's ability to re‐ port openly on the case.

"The police are a public in‐ stitution who enjoy the state's monopoly on the use of violence. Their ability to deploy those powers must be subjected to the highest level of scrutiny of any act com‐ mitted in the name of the public," lawyers for the family say in court documents. "In that context, there can be no doubt that the public has a right to know and under‐ stand who these officers are, and the acts that they each committed that resulted in Mr. Choudry's death."

In responding documents, lawyers for the police say that the officers have faced threats to their safety. "Vio‐ lent threats were made in the form of social media posts, wanted posters, and verbal threats at protests. They have been described as 'mur‐ derers' and 'suspects.' Anonymous groups have in‐ vited members to share the officers' names and ad‐ dresses … There is no way to express the John Doe Officer‐ s' concerns without sounding dramatic: disclosing their identities makes them sitting ducks."

WATCH | Bystander video captures tactical officers out‐ side Choudry's home:

CBC News has intervenor status in the case and is in court opposing the proposed ban. Also intervening are the Canadian Muslim Lawyers Association against a ban, the Police Association of On‐ tario for a ban, and the Cana‐ dian Civil Liberties Associa‐ tion, who ask the court to consider the impact of its de‐ cision in this case on future use of force cases.

The hearing comes amid an ongoing civil lawsuit filed against the Peel Regional Police Services Board, Chief Nishan Duraiappah and the officers, who have been cleared by Ontario's Special Investigations Unit of any wrongdoing in Choudry's death. The $22-million suit, first reported on by CBC News, argues police were "reckless" in their response to the mental health call by Choudry's family and breached his right to life un‐ der the Charter and violated his right to equality as a racialized person in crisis.

"They negligently allowed a straightforward mental health call to spiral out of control and become a highrisk tactical operation," the lawsuit says, adding the police "deployed deadly force without justification."

The allegations have not yet been tested in court.

Shot within 11 seconds

It was 5:30 p.m. on that June day four years ago when Choudry's family called paramedics, worried because he hadn't been taking his medication.

Instead of getting medical attention, Choudry would die that day.

According to the family's lawsuit, Choudry's daughter told the dispatcher he had a small pocket knife with him, but despite her reassurances that he wasn't dangerous, police arrived and demanded to see the knife.

According to the lawsuit, Choudry said he "would not leave his home because he was afraid that the officers would shoot him." English wasn't his first language, his family has said, and he later told a Punjabi-speaking of‐ ficer that he did not intend to hurt himself.

With no mobile crisis team available at the time, according to police, tactical officers entered the apart‐ ment after Choudry stopped responding, shouting at him in English. Within seconds, police Tasered him, fired rubber bullets and shot two bullets into his chest, killing him.

Two of the three officers on the balcony who spoke with investigators said Choudry moved toward them, knife in hand, after the balcony was breached - a claim for which Ontario's police watchdog notes they were the only source of di‐ rect evidence.

The officer who shot Choudry ultimately declined to speak to the Special Inves‐ tigations Unit as is allowed under Ontario's Police Ser‐ vices Act. All that is known of his perspective are the words another officer said he heard him say after opening fire, as reported to the SIU: "I had to do it. I had no choice."

Police turn to 'threat as‐ sessor' as expert

As part of their applica‐ tion, lawyers for Peel police rely on the view of a "threat assessor," whose salary is paid by the force itself. The assessor has said being on the police payroll "is not tied to her conclusions," and that publicly naming the officers in Choudry's death will "en‐ hance the risk of violence to‐ ward them and should be avoided."

The same assessor has said there have been "no identifiable threats or con‐ cerning communications di‐ rected toward the police" since the summer of 2021.

Choudry's family's lawyers say the assessor relied on "dubious techniques" in her report, has refused to supply any documents supporting her opinion and should be given no weight by the court as an expert.

During cross-examination, the assessor was asked about a YouTube post con‐ taining video of the police's tactical team entering Choudry's home on which a user reportedly commented in part: "The tactical guy in the middle… I know his house… let's deal him [sic] there… I have his home ad‐ dress," the family's lawyers say in court documents.

The assessor responded that the Peel police's criminal investigation bureau investi‐ gated the post and inter‐ viewed the user behind it.

"The investigation con‐ cluded that the threat was

baseless," the document says, and no charges were laid.

Police association, civil liberties groups weigh in

The Police Association of Ontario argues in its filing that as a matter of public policy, the courts should pro‐ tect officers' mental health by concealing their identities in such cases.

"While having to give evi‐ dence about the incident may be necessary for legal processes, protecting officer‐ s' identities is one way of mit‐ igating the psychological im‐ pact of having to relive the event," it says in part.

As noted by lawyers for CBC News, the Supreme

Court of Canada has repeat‐ edly emphasized the impor‐ tance of openness and trans‐ parency of the courts and that for justice to be done, it must be seen to be done. Ex‐ ceptions to the open court principle requires proving that openness presents a se‐ rious risk to public interest, that an exception is neces‐ sary to prevent serious risk to those identified and that the benefits of an exception outweigh its negative effects.

On that point, the Canadi‐ an Muslim Lawyers Associa‐ tion argues in its filing that protecting the officers' identi‐ ties could jeopardize whether justice is seen to be done.

"The need for trans‐ parency and accountability is heightened and particularly acute in proceedings impli‐ cating the fraught relation‐ ship between police and racialized communities," it ar‐ gues. "The court must be alive to the likelihood that such restrictions will exacer‐ bate distrust by racialized groups in our public institu‐ tions and undermine the le‐ gitimacy of the judicial pro‐ cess."