Pubdate: Thu, 26 Apr 2012
Source: Toronto Star (CN ON)
Copyright: 2012 The Toronto Star
Authors: David Bruser and Jesse McLean
Referenced: The Star's letter to TPS:
Referenced: TPS statement for the Star (pdf):


Visibly nervous, papers shaking in their hands, Toronto police
officers Jay Shin and Joseph Tremblay testified under oath that they
stopped Delroy Mattison's Chrysler Intrepid on the afternoon of July
18, 2011, because they saw him using a cellphone.

The officers were lying, just not very well.

In Mattison's trunk that summer day were a stainless steel .357 Smith
& Wesson revolver and 31 bullets. Mattison, who had a previous
conviction for armed robbery, was on his way to a drug deal. Under the
law, these officers needed a reason to stop and detain Mattison.
Without one, they would never have found the gun.

The problem is they never seized a cellphone or noted the existence of
one in paperwork filled out at the scene. That night, a third officer
snapped photos of the impounded Chrysler's interior, none showing a

"Officers Shin and Tremblay were untruthful about seeing Mr. Mattison
using a cellphone," Justice Nancy Backhouse ruled. She tossed the
evidence, saying, "This court must dissociate itself from (this)
serious and deliberate state misconduct." Mattison walked free.

Backhouse was trying to send a message, one being repeated by
concerned judges in courtrooms across the country: Police dishonesty
makes a mockery of the courts, undermines the public's trust in the
justice system and must be condemned. There is little evidence anyone
is listening.

A nationwide Toronto Star investigation shows judges are frequently
finding that police officers lie under oath. The dishonesty comes with
little consequence to the officer, particularly in provinces such as
Ontario where there is no law or policy requiring a prosecutor or
police force to investigate the courtroom conduct.

One Toronto officer, Det. Scott Aikman, has twice been accused of
being untruthful by judges in different cases. The story of Aikman,
and the two cases that crumbled, will be in Friday's Star.

Though some may believe it is acceptable for officers to lie after
taking guns and drugs off the street, the Star found the cost of the
deception to community safety across the country is high.

The following suspects have walked free after officers lied in court:
an accused pimp of a teenage girl, possessors of child pornography, a
major ecstasy manufacturer operating out of a Scarborough house,
members of an international data-theft and fake-credit-card ring,
marijuana growers, and drug dealers carrying loaded handguns.

Judges have discarded as evidence at least $40 million worth of
cocaine, meth, ecstasy and weed in recent years.

Some suspects, freed following police lies, continue to get in trouble
with the law.

The Star attempted to contact all officers named in this series of
articles. Some spoke to the newspaper. Most did not.

One of the biggest prosecutions involved Chuck Wan Leong, accused of
operating an ecstasy lab in his two-storey brick house. Police found
$16-million worth of ecstasy, methamphetamines and ketamine in the

In that case, Justice Nola Garton said various parts of York Region
Det. Robert Worthman's testimony were "inconsistent and inaccurate,"
"exaggerated," "almost inconceivable," an "embellishment,"
"misleading," "nonsensical" and "patently absurd." The judge tossed
the evidence and Leong walked free.

Worthman has been charged by his force with deceit and discreditable

Judges have found officers lie in court to cover up shoddy and illegal
investigation techniques, excessive force, and racial profiling.

The majority of the cases reviewed by the Star involve police officers
who, out of laziness, overzealousness or poor training, violated laws
that protect suspects from abuse of police power, found damning
evidence and then lied to cover up their flawed investigation.

"It's the coverup that kills," said an Ontario judge, who requested
anonymity to preserve the appearance of impartiality necessary for his

Police officers have a difficult job and usually know who the
criminals are, the judge said, but some play hunches to bust suspects,
then "make stuff up" to patch their investigations.

"Police will end up lying on the witness stand. That's just a reality
. We (judges) know this happens. We talk about it all the time."

While police officers can randomly stop vehicles to check vehicle
safety or a driver's paperwork, they must otherwise have reasonable
grounds to believe an offence is being committed to stop a car, detain
a person or search a house. Mere suspicion is not enough.

Suspicion is all RCMP Const. Brian Sprott had. In January 2009, on a
rainy night in Maple Ridge, B.C., Sprott and his partner sat in their
unmarked vehicle and watched a suspected drug house on Dewdney Trunk
Rd. Then, on a hunch, they followed Chris Xiong after he pulled out of
the driveway. This was a drug investigation, not a vehicle or driver
safety check.

The Mounties stopped Xiong and found 12 individually wrapped, $40
crack rocks, three cellphones and more than $800 in cash. Sprott
testified at trial that he stopped Xiong for speeding.

The alleged speeding, as well as Sprott's claim that crack rocks fell
onto the pavement when the suspect exited the vehicle, gave the
Mounties their reasonable grounds.

But Sprott had earlier testified during a preliminary hearing that he
intended to stop Xiong before he allegedly sped from the house. The
Mountie was asked if his answers at the preliminary hearing were true
and "(he) answered rather remarkably, 'At the time, they were true,'"
Justice Kathleen Ker noted.

She added: "Const. Sprott ... appeared evasive and uncomfortable when
questioned on this point." On the witness stand, the Mountie, who
never issued Xiong a speeding ticket, shrugged and awkwardly grinned.

"There is a legitimate public interest in having police officers
provide their evidence to the court in an accurate and careful
manner," said Ker, who slammed the officer's "flip-flop," ruled there
was no legitimate reason to stop Xiong's car, tossed the evidence and
let the suspect walk.

Sprott could have saved himself and his force the embarrassment with
proper police work, such as continued surveillance of the house or

These bogus traffic stops and warrantless searches have led to
wasteful prosecutions that tied up the taxpayer-funded courts and put
alleged criminals back on the street.

Though the judges in these cases recognize that such large seizures 
of drugs, loaded guns and "highly reliable" proof of other serious 
crimes "cry out for a trial on the merits," they find the police 
misconduct the greater sin. Angered at police lies in his courtroom, 
Justice Peter Hambly explained his difficult decision to stay charges 
against two men accused of operating a $16-million marijuana grow-op 
in Niagara Region:

"For the people involved in it to go unpunished leaves a sense of
betrayal in hard-working, law-abiding people," Hambly said, but he
added: "If police lying is tolerated by the courts, they will soon
lose the respect of the community."

Hambly's decision is being appealed.

The Star searched court judgment databases to locate cases since 2005
where judges found officers misled the court. The 100-plus cases, from
Victoria to the Northwest Territories to Halifax, involved more than
120 officers denounced by judges for outright lying, misleading or
fabricating evidence. The search also revealed:

* Some of the words judges used to describe police evidence and
testimony were "lie," "fabricate," "evasive," "absurd," "ridiculous,"
"subversive," "disturbing" and "pure fiction."

* Two officers - one in Victoria, the other a Toronto detective - have
each misled the court in two separate cases.

* The chief of a suburban Winnipeg police force was charged with
perjury and his force taken over by the RCMP after he allegedly lied
to cover up details of his former partner's role in a fatal drunk
driving accident.

* In several cases, officers assaulted a suspect, then began their
coverup by charging their victim with assaulting and obstructing
police. Some of the victims were guilty of nothing more than a bad

* Racial profiling, and the subsequent police deception meant to hide
the misconduct from public view, cost the people of 100 Mile House,
B.C., the prosecution of Zai Chong Huang and the 57 marijuana plants
found in his Dodge pickup by RCMP Const. Berze.

Berze testified he stopped Huang's truck because it swerved in its own
lane. The judge noted that Berze followed Huang for many kilometres
before the alleged swerve. For this reason, and because of the wording
and emotion of Berze's interview of Huang after the arrest, the judge
found the swerve was a "pretext," and that Berze likely saw Huang at a
gas station earlier in the night, noticed he was Asian and assumed he
was involved in organized crime.

"Const. Berze was being untruthful with the court," said B.C. Judge
Elizabeth Bayliff.

The Star found 28 cases since 2005 that involved a total of 34 Toronto
officers determined by judges to have misled the court.

Toronto Police Services Board chair Alok Mukherjee told the Star he
has raised the issue with senior police officials and has been met
with "a certain frustration and defensiveness. They'll say, 'The
officer was being diligent and the judge was more interested in the
Charter rights of a criminal than the fact that the officer found a
gun, and they let that person go.'"

Mukherjee added, "I have some degree of frustration because I believe
judges should be listened to."

In a combative letter to the Star, Toronto police spokesperson Mark
Pugash equated the language used by judges in the cases reviewed by
the Star to "throwaway comments unsupported by evidence."

"You either don't understand, or you don't want your readers to
understand, the fundamental distinction between a judge's comments and
a judge's rulings," Pugash continued. "Without an understanding of
such a basic point, your story cannot be taken seriously."

"A judge can comment on anything he or she wishes. Such comment,
however, does not amount to a finding of guilt," Pugash said.

"The criminal justice system works on evidence, on examination,
cross-examination and decision. It does not work on throwaway comments
unsupported by evidence."

Pugash said the onus is on defence lawyers, prosecutors and judges to
report concerns over an officer's testimony to police for

The cases in the Star study show judges painstakingly reviewed and
deconstructed the facts, testimony and physical evidence presented in
court, and concluded that officers lied.

The 100-plus cases found by the Star represent only a fraction of the

One reason is that not all judgments are disseminated to the

Another reason, several sources say, is that when confronted with
police dishonesty, some judges are reluctant to call it by its name,
instead choosing innocuous language when assessing flawed officer testimony.

"It's difficult to accuse someone who works so hard in the public
interest of misleading the court," said the Ontario judge interviewed
by the Star.

Some lies, though, cannot escape the spotlight, especially when video
or audio tells the unadulterated truth.

Video shot by civilian eyewitnesses exposed the lies of two Calgary
officers who beat Jason Arkinstall while he was handcuffed and then
charged him with obstructing, threatening and assaulting an officer.

The video, shot after 3 a.m. on Aug. 31, 2008, the weekend of a tattoo
convention, shows Const. Brant Derrick smacking Arkinstall in the back
of his head and throwing him head first and onto his stomach in a
police van's rear caged compartment. Arkinstall was thrown with such
force his flailing legs almost hit the van roof. "In an obvious burst
of anger," Judge Terry Semenuk said, Derrick slammed the van doors on
Arkinstall's leg.

Semenuk acquitted Arkinstall of threatening Derrick. The other two
charges were dropped before trial. The officers, the judge said, were
"unreliable and not credible."

Judge Semenuk was understating.

In court, before Derrick knew the video existed, Arkinstall's lawyer
asked him if he struck Arkinstall before throwing him into the van and
slamming the van door.

Derrick: "It didn't happen."

Lawyer: "Didn't happen?"

Derrick: "No."

Lawyer: "You're sure of that."

Derrick: "Yes. I'm sure of that."

Back inside a courtroom on University Ave. in Toronto, after listening
to Justice Backhouse rule that Officers Shin and Tremblay lied and the
gun they found was inadmissible, Delroy Mattison, clutching a small,
yellow Bible, bows his head, smiles and walks out of the prisoner's
box a free man.

"The officers fabricated their story. They did as they felt. They
lied," Mattison says outside the courtroom. "They go to school for
training. (Someone) should ensure the police are not breaking their
own code."

Mattison, 26, sees the judge in the hallway.

"Thank you, miss," he says but gets no response as she passes through
a door and into an office. 
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