Abusive arrests are not just a U.S. problem
“George Floyd (died) face down on the street under the knee of a police officer in Minnesota.”
That’s the mightily reserved way Barack Obama described what officer Derek Chauvin did during the arrest in Minneapolis on Monday. I would prefer to simply say that Chauvin killed him. A criminal investigation will determine the legal nature of that death: murder, negligent homicide, manslaughter or justified use of force. Given that the Minneapolis police charged Chauvin on Friday with third- degree murder and manslaughter, it appears that no one believes that the conduct of lethal arrest was justified.
The day after Floyd’s death, I watched Toronto police giving out merciless beatings in the process of arresting demonstrators at the G20 summit in 2010. That footage opens the TVO documentary The Arrest, which had its world premiere on Tuesday.
That police and prosecutors abuse their power to convict the innocent has been a regular theme of my writing for more than 10 years. Some readers have asked why I write about it so often. I do because so few other Canadian columnists write about it often enough. It still amazes me that society at large appears largely untroubled by the fearsome power of the state turned against the innocent.
The TVO documentary, made by veteran journalist and war correspondent Martin Himel, reminded me of a lacuna in my own columns. I have written dozens of them about the wrongfully convicted; I have neglected to point out that the abuse of police power can begin with the arrest.
We tend to think of the victims of such abuses as poor and marginal, often racial minorities. True enough, as Floyd was the latest black man to discover that the arrest is not the beginning of the process but the end. Had Floyd been convicted of dozens of gruesome rapes and grisly murders, he would not have been executed, as Minnesota abolished the death penalty 119 years ago. Instead he was arrested on suspicion of passing a counterfeit $ 20 bill. The death penalty apparently still exists for that if the arresting officer considers it apt to kneel on your neck until you can no longer breathe.
Yet a great injustice can still be done without violence. We need to think about arrests on dubious charges as “wrongful arrests” in the same way that we think about “wrongful convictions” — a gross abuse of police and prosecutorial power.
Do not think that wealth or power is protection against that, even if most wrongful arrests are of the poor and the weak. Remember the case of Vice-admiral Mark Norman, second- in- command of Canada’s armed forces. Being vice- chief of the defence staff did not prevent him from being arrested and charged with leaking confidential government information. He lost his job. A leisurely 14 months after charging him, the Crown prosecutor informed the court that the charges were withdrawn because there was no probability of a conviction. The House of Commons apologized to Norman that our police and prosecutors had ended his career and besmirched his reputation.
Himel’s documentary points out that 44 per cent of all arrests in Ontario do not result in a conviction. The charges are dropped, or dismissed by a judge, or result in acquittal. Ontario’s criminal justice procedures permit months to go by between the arrest and initial charge being made by police, and the charges being reviewed by the Crown prosecutors for viability. In British Columbia and Quebec, that review is done within days, and their comparable rate is nine per cent.
In Ontario a life can be completely disrupted for months, even years, by a wrongful arrest — even if there is no police beating in the arrest itself. Jobs and housing can be lost, unaffordable legal costs incurred, families disrupted, friendships broken, physical and mental health compromised. That is not a bug of the system, but the way it is designed to operate.
Davin Charney, the lawyer who is the hero of Himel’s documentary, was himself subject to a wrongful arrest and imprisoned for two weeks on dubious charges of which he was acquitted.
“I always tell my clients, when they’re charged with a criminal offence, win or lose, you always lose,” says Charney. “If you’re arrested, and not convicted, you are still punished through the arrest, and the night in jail, and the having to find a lawyer, and being put through that ringer.”
Slow progress was made in 2018, when Ontario passed a law preventing police from disclosing arrests that did not result in convictions when background checks are done. Reporting mere arrests could be enough to deny an applicant a job or volunteer position, even if the arrest was wrongful.
But the problem is with an unnecessary arrest in the first place on dubious charges, or followed by inflated over- charging, that cannot be reviewed within days.
In these pandemic days the watching of documentaries has likely increased tenfold. Put The Arrest on your list.
A GREAT INJUSTICE CAN STILL BE DONE WITHOUT VIOLENCE.