SUPERIOR COURT OF JUSTICE - ONTARIO
Date: 20120206
RE: Her Majesty the Queen
AND:
John Schertzer, Steven Correia, Ned Nebojsa Maodus, Joseph Miched and Raymond Pollard
BEFORE: Madam Justice G. Pardu
COUNSEL:
John Pearson, M. Rupic, J. Barrett and S. Reid , Counsel for the Crown
John Rosen, Paul Alexander and Emily Beaton , Counsel for John Schertzer
Harry G. Black and Joanne Mulcahy , Counsel for Steven Correia
Patrick Ducharme, Julie Santa Rossa and Evan Weber , Counsel for Ned Maodus
P. Brauti and Maureen Salama , Counsel for Joseph Miched
Earl J. Levy , Counsel for Raymond Pollard
HEARD: February 2 & 3, 2012
ENDORSEMENT
[ 1 ] The Crown proposes to introduce into evidence various directives and orders governing the conduct of police officers in the employ of the Toronto Police service, and to call evidence regarding the standard practices expected of police officers in relation to such issues as the keeping of memo books, preparation of Crown briefs, booking of prisoners at police stations, dealing with seized property, and to explain various forms used by the Toronto Police Service.
[ 2 ] The defence objects to this evidence on numerous grounds:
The evidence of directives and orders is so voluminous that it will distract the jury from the task of determining criminal liability, as opposed to compliance with police standards.
The evidence is prejudicial, in that it may lead a jury to take a dim view of an accused because he was not perfect in his compliance with some of these standards, and that might lead a juror to wrongly infer guilt by propensity, perhaps propensity for sloppiness or negligence.
The evidence is irrelevant. A failure to comply with directives or norms of conduct is irrelevant to the question of whether an officer assaulted Quigley, stole money from him or from Fagundo, whether an officer lied under oath. None of those kinds of conduct is sanctioned by directives, rules or standard practices.
Evidence about the directives and norms said to be applicable to all police officers may be misleading in circumstances where those requirements are enforced or implemented in different fashions at different divisions and for officers with different responsibilities.
Campbell’s proposed evidence about the way that discretionary scope for implementation given by the directives was in fact exercised at 53 division is inadmissible hearsay. The only basis for that evidence in circumstances where Campbell never worked at 53 division must be information of a hearsay nature derived from conversations with others.
The list of Campbell’s experience and qualifications amounts to oath helping, an attempt enhance his credibility in the eyes of the jury, and should not be permitted.
Counsel have never seen Crown briefs stamped with the word “confidential”. They say this never happened because that would telegraph to the most casual passer-by that a confidential agent or informant was implicated in the case. To allow evidence that this was a requirement of an officer would be misleading. The directive about informants contains errors of law, for example in defining a confidential informant as a person who voluntarily provides information to police. This is wrong, it is argued because a person who provides information for consideration in relation to his own charges cannot be said to do so voluntarily, yet it is common ground that that person can be a confidential informant.
[ 3 ] In so far as the proposed evidence relates to the standard of conduct or norms expects of Toronto police officers, it amounts to opinion evidence which is presumptively inadmissible unless it meets the Mohan/Abbey criterion for admissibility.
[ 4 ] I begin with the issue of relevance. In addition to substantive offences such as assault, theft, and perjury the accused are charged with attempt to obstruct justice and conspiracy to obstruct justice for acts done in the course of their work as police officers. If they did not do something that a police officer would normally be expected to do, this may lead to inferences as to their state of mind, and whether there was an agreement to attempt to obstruct justice. For example, if five police officers were all participants in a significant event which would normally be recorded in their memo books, but all five made no reference to that event, this might lead to an inference that they were all party to an agreement to conceal that event, and that depending on the nature of the event, that that was for the purpose of attempting to obstruct justice. If that event was also omitted from the Crown brief, that omission might lend strength to the inference. Similarly, several witnesses will say that the police stole money from them. There are directives and standard practices about seizing property, counting money in the presence of the person in possession when it is seized and getting receipts from individuals to account for property seized. If those steps were omitted, this might lead to an inference that money was misappropriated. Where more than one officer is involved in the seizure, and no one complies with a standard practice, this could lead to an inference that they were acting in concert. There are clearly other possible explanations. Similarly, a failure to comply with a requirement to show a search warrant to an occupant at the beginning of a search, might lead to an inference that there was no warrant at the time.
[ 5 ] The Crown alleges that the accused attempted to obstruct justice and that they were parties to an agreement to obstruct justice by falsely stating that an confidential informant led them to Fagundo. The Crown alleges that they used Ioakim as an agent to lure Fagundo to Toronto with the drugs. If none of the standard procedures for dealing with confidential informants were followed, this might cast doubt on an officer’s assertion of belief that Ioakim was a confidential informant rather than an agent. If none of the standards for dealing with confidential informants or agents were followed, this might lead to an inference that the officers wished to conceal Ioakim’s role and that they conspired to do so. Other inferences are possible, but this does not make the evidence inadmissible.
[ 6 ] The admissibility of police directives and policies for this purpose was confirmed in R. v. Beaudry 2007 SCC 5 at paragraph [46] , where the Court stated,
“…evidence of the existence of directives of this nature and evidence that the accused was, or is presumed to have been, aware of them at the time of the conduct in issue can shed light on the circumstances of the alleged exercise of his discretion.”
[ 7 ] This evidence is also important to give the jury a context for evaluating the conduct of the accused. Jurors are unlikely to be familiar with the importance of memo books, the difference between agents and informants, the significance and likely contents of a Crown brief, the obligation of police to make disclosure of exculpatory and inculpatory evidence, and the obligations of police to account for the safety and welfare of prisoners and the security of property seized. These norms of police conduct are not matters of law which are the subject of a jury charge, but are requirements likely within the knowledge of officers which have a bearing on their state of mind which is a relevant issue in this case. While defence may be content that I advise a jury that as a matter of law officers are required to keep accurate notes of material events which transpired in the course of an investigation, that officers have a duty to disclose material evidence, both inculpatory and exculpatory, and have a duty to safeguard seized property and the security of persons in custody, these legal requirements do not establish knowledge on the part of an officer of those requirements. A juror would not understand the significance of an important omission from a Crown brief unless it understood the duty to disclose and the use made of Crown briefs by the Crown and defence counsel. I am satisfied that this evidence meets the Mohan/Abbey tests of reasonable necessity for admissibility.
[ 8 ] At the outset of this evidentiary hearing, the Crown presented a thick brief of directives which contained a great deal of information which was irrelevant and potentially confusing to a jury. As the hearing was adjourned overnight, the Crown produced a tightly edited selection of the directives upon which it proposes to rely amounting to less than 10 pages of the relevant directives and orders. I am satisfied that these would not overwhelm a jury. I am also satisfied that the jury can be effectively told that this is not the equivalent of a discipline hearing for failure to comply with orders or directives, and that the purposes for which the evidence is tendered can be explained with little risk of misuse.
[ 9 ] I fully expect that defence counsel can effectively cross examine Superintendent Campbell as to the degree of discretion and judgement which must be exercised in applying those norms, and how constraints of time, budget, exigent circumstances and local variation might affect adherence to the general principles.
[ 10 ] There is no dispute that Campbell has the experience and training required to describe the general norms expected of all Toronto police officers. I accept the submission of the defence that his evidence as to how discretionary aspects of those directives were implemented at 53 division, particularly whether specified duties were delegated to Schertzer for example, is inadmissible hearsay. The only basis shown for his knowledge is presumably information communicated to him by others, rather than his own observations. This does not fall within the realm of opinion evidence as to norms.
[ 11 ] The probative value of this evidence about norms and directives expected of Toronto police officers outweighs the prejudice of potential misuse. A juror is unlikely to infer a propensity to steal, assault a detainee, or commit perjury from a failure to comply with professional standards. If there was any failure to comply with such a standard, it pales dramatically in significance compared to the other misconduct alleged against the accused. This evidence will not exact an undue cost in trial time or in emphasis on the issues the jury will have to decide.
[ 12 ] With these principles, I turn then to a consideration of the specific directives proffered for admission. The directives are relevant as they form the basis for some of the standards or norms in issue.
[ 13 ] The binder of edited directives and rules will be marked as an exhibit in this evidentiary hearing. The portions highlighted in yellow at tabs 3 and 4 about disclosure are admitted. The portion highlighted at tab 6 about the duty to account for property is admitted. The portions highlighted at tab 7 regarding the duty to parade a detainee before the officer in charge and to allow reasonable telephone access to contact a lawyer is admitted. The portions highlighted in yellow at tab 8 regarding duties on the execution of a search warrant, production of the warrant at the time of the search, and securing of the fruits of the search is admitted. The highlighted portions of the directive regarding agents and informants at tab 15 are admitted. The rules about memo books at tabs 15, 16 and 17 are admitted, provided the Crown adduces evidence that they were in effect at the relevant times. The original proposed brief of directives from which these were drawn are made an exhibit on this hearing, for the sake of completeness.
[ 14 ] I turn now to the evidence of Superintendant Campbell. His qualifications, experience and training as a police officer are relevant to the assessment of his ability to express an opinion as to the standards generally required of Toronto police officers, except for paragraph 13. Campbell should not describe the day to day practices of the Central Field Command as may have been reported to him by Detective Sergeant Spires from time to time, but may describe the formal chain of command. Paragraph 14 is admissible to establish his knowledge of procedures for the lock up of prisoners.
[ 15 ] While Superintendent Campbell may give evidence about the standards of conduct expected of all Toronto police officers as I outline in these reasons, the evidence in paragraph 16 describing how responsibility was in fact delegated by the Detective Sergeant at the Central Field Command is excluded for reasons I have explained earlier.
[ 16 ] For the purpose of clarifying the directive about Crown briefs, the witness may explain in general terms what a Crown brief was at the relevant times, what it ordinarily contained or should contain, who was responsible for preparing it and reviewing it, where it went, the general time lines for distribution and the purpose of the Crown brief. He may indicate a general policy, if there was one, about retention of the briefs after completion of the matter, but may not testify about how that general policy was carried out at 53 Division unless he has personal knowledge of the practices at the relevant time. His evidence is required to explain what the pertinent documents were that were required by the directives, as a matter of standard practice.
[ 17 ] There will be no reference to TPS directive 13-17 regarding memo books since that directive came into force after the relevant events in this matter. The evidence about how notes are taken in the course of surveillance, where the duties performed prevent concurrent preparation of notes is admissible in so far as there was any standard practice in effect at the time the events underlying the charges occurred. The evidence as to a standard practice for the content of memo books, and the storage and retention of those books is admissible.
[ 18 ] The evidence as to standard practices for treatment of detained persons brought into a police station is admissible. The witness may explain ,in general terms, how documents such a record of arrest, supplemental record of arrest and injury reports (to which reference has already been made in evidence) as well as case tracking forms were created at the relevant times as a matter of standard practice. The witness may explain in general terms the standard practices for the handling of property and drugs, and the use of property receipts. The witness may give evidence about standard practices associated with the execution of search warrants, and division of responsibilities between a “recording officer” and an “exhibit officer.”
[ 19 ] The witness may explain standard training and instructions given to officers about their duty to advise accused persons of their right to contact counsel. The jury has already heard about the rights to counsel and caution printed in police memo books.
[ 20 ] The proposed evidence that police could not assault a person in custody is unnecessary.
[ 21 ] The witness describes in his will say the legal obligation of an officer who swears an information to obtain a search warrant to make full, fair and frank disclosure of all material facts. This legal obligation can be communicated to the jury by means of a legal instruction. The will say does not refer to standard practices or norms or training in this respect. The witness will not be permitted to express an opinion as to whether for example, an amount of money, if mentioned by Greeba Quigley, should have been mentioned in the information to obtain the search warrant for the safety deposit box.
[ 22 ] The witness may describe the purposes of badge numbers, and how they are used by officers, particularly in completing documents.
[ 23 ] The witness should not embark on an explanation of the difference between an agent and a confidential informant as a matter of law but may refer to the directives and forms relating to those matters.
[ 24 ] A ruling as to admissibility of portions of this evidence to issue in accordance with these reasons.
G. Pardu J.
Date: February 6, 2012