By Rachel Mendleson Staff Reporter, Steve Buist Spectator Reporter
Footage from a police body camera of a roadside arrest in Calgary shows officers smashing the driver’s car window and punching him in the face. The video led a judge to find the officers trampled the rights of the accused, and he tossed the case.
The video of the violent arrest was shown in court during the driver’s criminal trial. It was a key reason the suspect, who was facing cocaine trafficking charges, walked free. Yet the court refused to release it to a reporter without a judge’s order.
This case is one of four in Calgary and 91Ô´´ where Torstar had to argue in court to obtain video and photo evidence of police flouting the Charter of Rights and Freedoms. The exhibits are being published as part of a national investigation that brings the sheer volume of serious Charter violations out of the shadows.
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Forty years after the Charter made it illegal for police to use brutality or search without good reasons, Torstar set out to uncover cases where police violated the Charter. We wanted to know if courts are notifying police forces of these rulings, and whether the officers involved are facing consequences.
One reason – aside from the obstacles in the publicly funded courts – was institutional indifference. Many of the more than 40 police forces Torstar surveyed for this story did not answer basic questions.
None of these forces tracks cases where judges find police have breached the rights of the accused, and neither do the provincial or territorial governments.
Torstar is not aware of any publicly available databases of Charter breach cases at the local, provincial or national level. So we built our own using publicly available sources of court decisions reported by judges.
Reporters scoured online databases maintained by the Canadian Legal Information Institute and LexisNexis. They read thousands of rulings to isolate those where judges had determined the Charter breaches officers committed were serious enough to threaten public confidence in the justice system. In those cases, judges reduced the sentence of the accused, excluded key evidence or tossed the cases altogether. In some cases, the compromised prosecutions resulted from officers’ failure to follow procedure. In others, the conduct was found to be in bad faith.
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Torstar’s database includes 600 serious Charter breach cases from the past decade – from 2011 to 2021. More than a quarter of those cases were identified with the assistance of Western University’s law school’s Hidden Racial Profiling Project. Led by Sunil Gurmukh, an adjunct professor and human rights lawyer, the project is analyzing Charter breach rulings involving major municipal police forces. Gurmukh shared his case law research with Torstar.
As for whether any Charter-violating officers involved in the cases Torstar identified faced discipline, many forces said that information was secret. Spokespeople cited privacy laws that keep most information about police discipline hidden from public view. Many forces also refused to say whether they were even aware of the serious Charter breach rulings Torstar identified.
Even among police services that were relatively forthcoming, information about officer discipline was scant. One lawyer who represents officers facing discipline said this is because cases involving Charter violations are often handled informally – an internal process reserved for disciplinary matters that are considered not of a serious nature. Informal discipline cases are not made public.
Even among forces in the same province, the levels of transparency and accountability were inexplicably mixed. Waterloo Regional Police Service acknowledged it was unaware of cases Torstar identified and answered questions about officer discipline. But 140 kilometres away in Niagara, the force refused to provide this basic information about seven cases involving its officers unless Torstar requested it through Freedom of Information legislation.
More than six months after Torstar filed that request, Niagara police’s FOI officer responded in May, estimating it would cost $180 just to locate the records.
Rachel Mendleson is a 91Ô´´-based investigative reporter for the Star. Follow her on Twitter:
Rachel
Mendleson is a 91Ô´´-based investigative reporter for the
Star. Follow her on Twitter: .
Steve Buist Steve Buist is an investigative reporter and feature writer with the Hamilton Spectator. He is the creator of the widely-acclaimed Code Red project, which examines the connections between health, social and economic factors in Hamilton. He has won four National Newspaper Awards, been named 91Ô´´â€™s Investigative Journalist of the Year three times, Ontario’s Journalist of the Year five times and past winner of the world’s top cancer reporting prize by the European School of Oncology.
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