OCA issues rare stay, harsh words for police in scathing decision

Article originally published on December 13, 2013 by Advocate Daily.

The decision by the Ontario Court of Appeal to stay robbery and confinement convictions against a Toronto man who was severely beaten by Toronto police officers for a confession, is about reassuring the public that serious violent police abuses will not be tolerated, says Toronto criminal lawyer Aaron Harnett.

“The Court of Appeal used some uncharacteristically  stark and harsh language regarding the conduct of the Toronto Police Service officers as a means of highlighting to all Ontarians that the court is deadly serious about condemning this kind of outrageous behaviour,” says Harnett.

The scathing decision by Justice Robert A. Blair allows for Neil Singh to seek leave for appeal, but also stays the 2012 convictions against him for his involvement in the robbery of over $300,000 worth of copper from a Toronto-based company.

In the decision, Blair says Canadian society cannot tolerate – and the courts cannot permit – police officers to beat suspects in order to obtain confessions “yet, sadly, that is precisely what happened in this case.  One of the two police officers who participated in the beatings apparently thought, as he said, that ‘it’s part of [his] job’ to do so,” the decision reads.

“Judicial stays are very rare,” says Harnett. “Stays where trial fairness was not compromised are almost unheard of. The Court of Appeal took the unusual step of granting this rare remedy because the illegal police conduct was so outrageous that nothing less would suffice.”

Singh says he was beaten on three separate occasions over an extended period of time after his arrest months after the crimes he was convicted for, prior to giving what turned out to be a generally exculpatory statement.  Three police officers were involved in the beatings of both Singh and his co-accused: Detective Constable Jamie Clark, Detective Steve Watts, and Detective Donald Belanger.

The decision says Singh was struck on the back of the head five or six times in the first assault and kneed in the ribs once or twice, all the while telling the appellant he was lying about not knowing his co-accused. The attack lasted for up to two minutes, during which the appellant was pinned against the wall of the interrogation room. Clark and Watts left the room after the assault, and moments later Belanger came into the room and told Singh he better have something to say or he will be beaten again.

In the second attack, one officer grabbed the appellant’s neck, squeezing his throat and slamming his head against the wall, the decision reads.

“The squeezing was forceful enough that the appellant was unable to breathe and felt that he was about to black out, but D.C. Clark let go before he did,” the decision reads. “The punching continued, however.” The third attack was just as violent, it says.

The trial judge recognized the egregious nature of the police misconduct in order to obtain a confesstion, the decision reads.  The judge characterized the beatings as “thoroughly reprehensible behaviour on the part of those acting on behalf of the state.” The judge concluded, nonetheless, that the beatings did not warrant a stay of the convictions in the circumstances. Singh was eventually convicted and sentenced to jail.

Blair writes in his decision that, “the trial judge concluded that because trial fairness issues were admittedly not in play, and because the appellant’s injuries did not result in serious harm, a stay was not warranted. However, the analysis is incomplete at that point.  In my view, the trial judge was required as well to direct her mind to the nature of the police misconduct in the context of its potential systemic ramifications and the need to consider its impact upon the integrity of the administration of justice.”

What occurred, writes Blair, was not a momentary overreaction by a police officer caught up in the moment of a difficult interrogation.

“What occurred here was the administration of a calculated, prolonged and skillfully choreographed investigative technique developed by these officers to secure evidence,” he writes, describing the technique involved as, “the deliberate and repeated use of intimidation, threats and violence, coupled with what can only be described as a systematic breach of the constitutional rights of detained persons – including the denial of their rights to counsel.”

The courts must not condone such an approach to interrogation, Blair writes, and, “real life in the police services is not a television drama.  What took place here sullies the reputations of the many good officers in our country, whose work is integral to the safety and security of our society.”

Fortunately, in Ontario cases of police brutality on this scale are relatively rare, says Harnett, and decisions like this make sure police officers clearly understand that as far as the courts are concerned “prosecutions tainted by evil behaviour will not only result in a failed prosecution; they will result in a public humiliation of the police officers involved.”

However, adds Harnett “it is inconceivable that the officers involved are still on the police force. The door is wide open to a successful lawsuit by both beaten suspects. The fact that they remain on the police force will aggravate the damages, in my opinion.”