The media studio at Queen’s Park can hardly be described as filled to brimming. Political staff outnumber press who’ve come here this Tuesday morning, February 12, to hear defence lawyers Edward Sapiano and Ontario Criminal Lawyers’ Association director Peter Zaduk call for a public inquiry into the Crown’s handling – or mishandling, as the case may be – of corruption charges against six former Toronto drug squad officers.
Outside, a snowstorm is brewing.
But barely over a week after Justice Ian Nordheimer stayed the charges over what he called the Crown’s “glacial” pace of disclosure of evidence, media fatigue is already setting in.
No. The juiciest justice story today is happening at a press conference a few blocks away, where OPP Commissioner Julian Fantino – who coincidentally figures into the cop corruption story as well – is announcing charges against 23 people for sharing seamy pics of kids over the Internet. Haven’t we seen this movie before?
A cynic might find the timing of the announcement curious. The task force set up to look into what is being dubbed an international ring began its probe barely a month ago. But the government has declared February 13, Safer Internet Day. The PR points it stands to score may have been too much for the communications gurus in the Attorney General’s media office to resist. All the better if it pushes the biggest cop corruption scandal in Canadian history off the front pages.
The question on everybody’s lips: did lawyers in the crown’s office deliberately delay disclosure of evidence, knowing that at some point in the process a judge would come along and say, “Enough is enough,” and put a stop to the charade?
If only it were so simple. The tale of how six officers slipped through the cracks is an epic one and every twist and turn raises questions about whether the entire legal order is shot through with a disinclination to hold cops accountable for their actions.
If a picture’s worth a thousand words, then the front-page photo that caught the six officers minutes after Nordheimer handed down his decision spoke volumes, especially for law reform types who’ve watched one too many cops walk free with the cloud of serious allegations of wrongdoing still hanging over their heads.
“God, they looked like they just walked out of a scene from the Sopranos,” says one long-time policing observer.
A little harsh, perhaps, but the charges against Staff Sergeant John Schertzer and Constables Steve Correia, Joseph Miched, Ray Pollard, Ned Maodus and Richard Benoit — conspiracy to obstruct justice, perjury, extortion, assault causing bodily harm and theft over $5,000 — allege the officers lied to obtain search warrants, used those warrants to rob drug dealers, falsified notes and then lied under oath in court to cover it all up.Indeed. It was a dark day, the darkest in the history of the Toronto force, as then-chief Julian Fantino said, when he took the podium at headquarters with RCMP Superintendent John Neily on January 7, 2004, to announce the charges against the Central Field Command Drug Squad Team 3.
Fantino said it was a few bad apples. And at first it was hard to connect all the dots. But as more details surfaced, evidence began pointing to the horrifying possibility that Schertzer, et al. may have only been the tip of the iceberg.
In 2000, more dirt was uncovered. Criminal charges arose from allegations that Schertzer, Correia, Miched, Pollard and four other drug squad officers were dipping into a fund set up by police to pay informants.
The “fink fund” charges, as they became known, went nowhere either. They were ultimately stayed by the Crown in 2002 because proceeding with them “may compromise an ongoing criminal investigation”. That’s because Neily’s task force was uncovering far more serious allegations against Schertzer, et al., allegations that prompted investigators to look into foreign bank accounts. A second drug squad was also reportedly under scrutiny.
Fantino’s few bad apples had turned into a barrelful.
By 2006, more allegations would surface from Neily’s own task force — police seargents James Cassells and Neal Ward — that more than a dozen more charges of police brutality and corruption had been swept under the rug. Indeed, the work of Neily’s taskforce would be called into serious question by way of a leaked memo penned by professional standards inspector Anthony Corrie back in 2001.
It suggests Neily’s task force was set up not to clean out corruption, but to avoid the embarrassment of a public inquiry. It’s hard to ignore the possibility.
By March 2003, some two years into its work, the task force’s financial lifeline was being choked off. Neily, in his now famous letter to the Crown pleading for charges to proceed, would end up asking – no, begging – the Ministry of the Attorney General to take up the financial slack.
It’s unclear whether the AG came through.
But one police source says it was Fantino’s view that Neily’s task force “had cast its net too widely and had to be reined in.’’Neily’s work would be wrapped up a few months later.
In the end, the task force, which maintained a team of between 15 and 40 investigators, collected and analyzed several hundred-thousand pages of documents and interviewed more than 400 people, had the charges against Schertzer, et al., 40 in all, to show for three years of work.
Back in January 2004, Neily ended the press conference to announce the charges with words that he couldn’t have known would hang like a cloud over the proceedings four years later.“The special task force mandate challenged us to follow the truth,” he said. “The truth has led us to where we are today.” If only.
Edward Sapiano says the only way to avoid interference is to set up an independent office to prosecute cops.
It’s unclear what role resources, or lack thereof, may have played in the disclosure delays that ultimately submarined the case against Schertzer, et al. But how could a case of such importance have been allowed to veer off track at the special justice unit? Was no one watching the clock tick?
In a case of this magnitude, higher-ups in the ministry, as well as the attorney general himself, would have been kept apprised of the case on a weekly, if not daily, basis.The suggestion has been floated by, among others, defence lawyer Edward Sapiano that political interference may have had something to do with the Crown’s case proceeding so slowly. Complaints from Sapiano’s and nine other defence lawyers’ clients ultimately led to the charges against Central Field Command Drug Squad.
“One must ask what was the AG doing. This is not the type of error that can be chalked up to a quick misjudgment on the party of a lawyer.’’ says Sapiano.
Sapiano’s not alone in expressing concern about possible interference.
The Ontario Criminal Lawyers’ Association has joined Sapiano in calling for the establishment of an independent prosecutor’s office, to handle all cases involving charges against police. Says OCLA director Peter Zaduk, “The police are so close with prosecutors, it’s necessary for an independent body to perform this function.”
The idea that political higher-ups called the shots on how the Crown handled this case “is beyond me to even think possible” says former Crown Howard Morton. “Maybe this is the old Crown in me talking, but when I was there, if there was even the hint of political interference, that got you going even more.”
It can also be said, that the Liberals have been overly sensitive to the concerns of police unions during their time in power. One insider notes how police union heads he’s spoken to across the province never tire of saying how they can call on any number of cabinet ministers directly whenever they need help.
A new independent office to deal with complaints against police that former AG Michael Bryant promised before the 2007 election is still nowhere to be seen. Ditto for a whack of improvements to the Police Services Act requested by Police Services Boards across the province.
“The premier takes pride in the fact he’s managed to keep labour peace in the province,” this insider says. “The message clearly is that he wants to keep it that way.”
Was the Crown’s office simply caught off guard, lulled into a false sense of security by the notion that the charges were so serious that no judge would dare toss them? Sapiano doesn’t think so. It’s all very mysterious.
“All the layers of concern have left a horrible black cloud,’’ says the NDP justice critic Peter Kormos.
Justice George Adams’s 1998 report into the workings of the Attorney General’s special prosecutions unit, the branch charged with prosecuting cops, noted the unit’s diminishing standing within the ministry and recommended that it be better staffed and resourced. But by Adams’s follow-up report in 2003, only a cosmetic change had taken place: the unit’s name had been changed to justice prosecutions.
Community groups believe the unit is not aggressive enough in pursuing charges against police, while others say its staff have some of the brightest legal minds in the AG’s office.
It’s also clear that the unit has been hampered by constant turnover due to a ministry policy of moving talent in and out every three years. In fact, there was a 100 per cent turnover of lawyers attached to the unit in 2003, less than a year before charges against Schertzer, et al., were laid.
But there’s also been a longstanding belief in both legal circles and among community groups, Adams points out, that working in the unit is akin to “going to the dark side.”
In his decision, Justice Nordheimer made numerous references to what he described as inexplicable failures on the part of the Crown to offer any explanation for many of the delays in disclosure. The AG still hasn’t offered an explanation even while conspiracy theories swirl.
“What bothers me the most,” says Morton, “is the fact a lot of community groups and people out there believe these charges were pitched out not by the Crown, but by the judge, because it was just cops. That’s an awful perception to have out there. It’s the last thing we need in this town.”
Is it possible that Nordheimer jumped the gun? A specialist in civil and commercial law, he’s described by lawyers as scrupulous and rigorous. Some Crown attorneys, however, think he’s too defence-minded, says one lawyer.
The thought Nordheimer may have been too quick on the trigger hasn’t crossed the minds of those calling for an inquiry. In their view, it’s pretty clear-cut – four years is far too long for anyone to have to wait to go to trial.
To some of them, though, Nordheimer’s ruling provides the ammo they need for larger political aims – namely, that the overhauling of the police complaints system – so criticizing the decision doesn’t make much sense.
Others in legal circles allow, however, that the length of time in which complex cases should reasonably be expected to get to trial should be revisited by the courts. Recent appeal court decisions have set 18 months as the new cut-off.
“The Appeal Court has been whacking the Charter to shreds,” says Morton.
And with the courts as overburdened as they are – one estimate puts the number of cases that have gone beyond the eight-month cutoff prescribed by the Askov ruling at almost 100,000 cases – is four years such an unreasonable delay? Shouldn’t the public’s interest in seeing these charges tried outweigh the interests of the accused?
Nordheimer ruled no, offering in one eyebrow-raising passage in his ruling that “in this case, the charges are not the most serious offences under our criminal law” – cops lying and obstructing justice? A few sentences later he wrote, “The possibility police officers intentionally embarked on a course of conduct designed to distort the criminal process...strikes at the very foundation of our justice system.”
But Nordheimer found that the interests of the accused in this case, namely their Charter rights to a fair trial, were prejudiced by the delay and that the accused had lost considerable income in lost overtime and opportunities for promotion while they were suspended from duty.
The hardship was mitigated by the fact all the officers continued to draw a salary while under suspension entered not at all into Nordheimer’s thinking.
Nordheimer says there was only one instance in which defence actions contributed to a delay in the trial. But the defence lawyers were doing their part to stall matters, refusing to sign a waiver to protect the identities of police informants that set back disclosure by the Crown for months.
That several news outlets went to court to have the customary publication ban on the preliminary hearing lifted didn’t help move matters along.
At one point, the Crown even wrote all the defence lawyers to advise that an earlier date for the preliminary trial could be set if they wanted one. None requested an earlier date.
Contrary to media reports characterizing the sum total of the disclosure as taking place at a “glacial” pace, the turning over of evidence to the defence by the Crown – literally hundreds of thousands of documents – happened on a monthly basis when it became clear that both sides were moving toward a firm trial date.
The Crown had 30 days, but took eight days to announce it will be appealing Nordheimer’s decision, which can mean one of two things.
Either, as some legal observers have suggested, the political higher-ups in the Liberal party are anxious to defuse the situation, or there are so many holes in Nordheimer’s decision that possible appeal routes are obvious.
About the only thing close to a certainty here is that the two years it will probably take for the Crown’s appeal to get before courts will only serve to strengthen the defence’s claims of unreasonable delay.
And by then, how many witnesses will be willing to take the stand? Most observers agree the Crown’s chances of success are marginal at best. Maybe as Zaduk suggests, “we should just call it a day.’’
Edward Sapiano speaking @ press conference:
Pete Zaduk speaking @ press conference into staying of corruption charges against Toronto police officer: