The fourth floor of the University Avenue courthouse, outside room 4-10, 10:30 am. Toronto Police Association lawyer Gary Clewley is barking a stream of invective into his cellphone. From where I'm standing a few feet away, it sounds a lot like he's talking to union head Craig Bromell. And the subject seems to be the bombshell settlement of a $750,000 lawsuit brought by Thomas Kerr, a homeless man who claims Bromell and eight other officers beat him to a pulp in an abandoned warehouse area on Cherry Street back in 1996.
Seems to me Bromell's balking at the deal and Clewley's talking him down. Later I corner the lawyer to ask if I heard right. "I was just talking to my nanny,' he snaps.
Clewley's not used to losing in court and is clearly out of sorts. He's sought this settlement -- and now he has to explain why. The costs of defending his clients against the suit, he tells me, were becoming "exorbitant."
Is the union having financial problems? What about all that cash being thrown around in its lawsuits against the Toronto Star and most recently against chief Fantino and the force for pursuing criminal charges against officers allegedly caught shaking down drug dealers for cash?Not enough left in the kitty to defend the professional reputation of the president?
The fact is, there are some damned good reasons why Bromell et al. wanted to unload this case -- and money has little to do with it.
The court had already heard about Kerr's blood being found on the bottom of the boot of one officer and his hair in the gun belt of another. Not to mention his fingerprint on the plexiglass divider of the cruiser he says ferried him to Cherry Street.
Then there were the claims by Kerr's defence lawyer, Barry Swadron, that he had wiretap info that, if introduced to court, would make "mincemeat" out of Bromell in particular.
Clewley is defiant to the end. "I don't think it looks bad at all," he says, emphasizing wherever possible that there is no admission of guilt.
Indeed, shocking as it sounds, Bromell and company are off the hook. The drifter with the drinking problem and the messed-up life who wanted justice will have to settle for something less. The conspiracy he sought to prove will remain forever in the shadows, and soon few will remember the story of how the cop watchdog Special Investigations Unit, a special prosecutor with the attorney general's office, a chief of police and a police services board shamelessly washed their hands of an embarrassing affair and left an indigent to fight alone.***
Some 160 people were interviewed by the Toronto force's internal affairs unit on the Kerr case -- the most exhaustive investigation in the force's history.The department of defence was enlisted to take satellite photos. Radio communications and wiretaps were monitored. DNA evidence was sent to the FBI lab in Washington, DC. By the end of it all, more than 8,000 pieces of paper made up the file of the 51/9, as the officers came to be known by sympathizers at downtown 51 Division, where they worked.
But not one charge would be laid, either criminally or as a matter of internal discipline under the Police Services Act.
The sequence of events set out in a 52-page summary of the investigation compiled by IA paints an incriminating picture. It begins with Kerr's scuffle with one Gordon McLeod of D platoon, during which McLeod suffered a number of injuries, including a broken elbow. Kerr, a known street person, was charged with assault and resisting arrest. A couple of weeks later, while in the tank at 51 drying out from a night of drinking, he was taken out through the back of the station house.
From there he was placed in the back of a cruiser and, after being driven around for about 45 minutes, was taken to an abandoned warehouse area. There, he says he was beaten. Somehow he managed to escape to a nearby shelter on Front, where he told ambulance attendants he'd been beaten by cops.
Cops from IA who went to St. Michael's Hospital to interview Kerr noted that he was suffering from a bloodshot eye, swollen jaw, abrasions on both elbows and knees, and bleeding lips. Medical staff found blood in his urine. Kerr's blood alcohol level was zero.
Officers at 51 who worked the afternoon shift, pegged early as suspects, had their lockers sealed.
Incidents involving cops that result in serious injury or death are usually investigated by the provincial Special Investigations Unit. But for reasons known only to the SIU and not specified in IA's report, the unit withdrew from the case within hours after interviewing Kerr.
Meanwhile, what seemed like a cover-up was in progress at 51 Division.
At least one of the sealed lockers at 51 Division had been broken into during the night. That locker belonged to Paul Rubbini, the cop under whose boot Kerr's blood would later be found. The seals on several other lockers were also broken.
Nevertheless, investigators found a 42-centimetre hair of Kerr's in the gun belt of constable Partrick McLeod, who happens to be the brother of Gordon McLeod, the cop whose elbow Kerr had broken.
A review by IA of police radio transmissions revealed that a number of the officers implicated in the Kerr beating, Bromell among them, talked about meeting at "the trailers" on the night in question.
Other evidence implicated Bromell. Kerr told IA investigators that one of the officers who took part in the beating wore an external vest with the word "police" on it. Only two men in D platoon wore such vests -- Bromell and another officer who was working in plainclothes that night.
The 51/9, meanwhile, were not cooperating. All refused to talk with investigators on two separate occasions. All objected to participation in a formal lineup.
Despite accumulating evidence, a big problem for investigators was Kerr himself. He was not what one might call a perfect victim. Some of his statements to police were contradictory, an outcome IA investigators attributed to his addiction to alcohol.He was only able to positively identify two officers in a photo lineup conducted three months after the alleged beating.
Still, IA thought it had enough evidence to take to a special prosecutor at the provincial attorney general's office for consideration. Most of the officers, IA concluded, had motive and opportunity. But it didn't take Ian Scott long to throw a wrench into any plans IA was making to lay charges. Scot stressed that it wasn't his place to tell IA whether to lay charges or not; he would only entertain charges of assault against three of the nine, while advising that the likelihood of conviction was "almost zero, remote in the extreme."
Scott suggested that under the Police Services Act then chief David Boothby could order the officers to make a statement. If they refused, they could then be charged with insubordination.
But Boothby was too busy beating back the union's aggressive campaign to remove him to even consider stirring the pot -- even though he believed the officers should be charged with conspiracy, acccording to Bromell himself. And if peace within the ranks meant a homeless man had to be sacrificed, so be it.
First the SIU. Then Scott. Now Boothby.
Officers have been kicked off the force for less serious infractions than the Kerr beating. But the police services board soon joined the ranks of those seemingly more eager to bail out of the affair than to take the word of a homeless man.
Kerr's lawsuit claimed the board should be held "vicariously liable."
But board chair Norm Gardner, who was also a member of the board when the Kerr affair broke, says there isn't anything the board could have done differently back then.
"We were going on the advice of the Crown prosecutor," he says.
If the current board was keen on seeing justice done, however, it wasn't showing it. The board, in fact, continued to fight Swadron's attempts to obtain wiretap eveidence.
Bromell isn't talking publicly. He's declined to respond to two requests for comment. But he had plenty to say about the Kerr case in a two-and-a-half-page article he penned in the union magazine, Tour Of Duty, back in September 2001 -- including the fact that his father was dying of cancer during the time his calls were being intercepted by IA. "I cannot help but think of all the times we had highly personal talks on the phone, not knowing if our conversations were being intercepted by wiretaps.
"Some of you may have wondered why the association's style has changed since 97 and why we are more aggressive in protecting members' rights. I've stood where our members stand and I've experienced first-hand what our members face. If I and the rest of the association can stop this kind of nightmare from happening to any other members, we will pull out all the stops to do so."***
Swadron says that to continue with the case, given the other side's offer of a deal, became "unreasonable. They capitulated totally,' he says, even on the question of a gag order. There would not be one.If the case had proceeded, Swadron says, he would have introduced wiretap evidence that would have "destroyed" the police's case "with respect to all of the defendants, where they contradicted each other and clearly lied.'
We'll never know, of course. And that's just the way Bromell and company like it. Only two of the 51/9 took the stand.
Kerr, for his part, will never get the apology he was looking for. Just an undisclosed sum doled out to him a few hundred a month.
But "even if they did apologize to me, I wouldn't take it seriously," he says. "I know they wouldn't mean it. It'd just be a joke to them. I'm sorry we had to take it this far. But here we are today. You're looking at the truth."firstname.lastname@example.org