Front Burner - Judges toss cases over police credibility concerns

Episode Date: November 13, 2019

Over the last five years, more than 50 criminal cases have fallen apart after a judge found a police officer gave false or misleading testimony, according to a CBC News investigation. Today on Front Burner, we talk to reporters Chris Glover and Stephen Davis about what they found when digging into judges' rulings in these cases, and what the possible consequences are.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hello, I'm Jamie Poisson. So maybe you've seen this scene on a crime show. A police officer takes the stand. Hand on the Bible, they swear an oath to tell the truth.

They give testimony that's used as evidence. Then, the intrepid public defender finds out the officer's testimony is actually false or misleading. And the whole case falls apart. Well, a new CBC News investigation has found scores of examples of just that here in Canada. My colleagues Stephen Davis and Chris Glover reported this story, and they're here with me today to explain what they found. This is FrontBurner. Chris, Stephen, hi. Hi.

Hi. So Chris, I want to start with this case involving a guy named Gil Kim. And what was he accused of? What happened here? Okay. So back in 2012, in Markham, Ontario, just north of Toronto, a Rogers cell phone store was robbed. And then a couple months later, Gil Kim was arrested for that robbery.

You know, a few thousand dollars was stolen and tens of thousands of dollars worth of cell phones was stolen from that Rogers store. And police accused Gil Kim of having been a part of this robbery. Okay. And so he gets arrested for this robbery. Like what happens? So he's arrested. He's brought down to a police detachment in Markham. And the really interesting thing about his case is what happens next. He's brought into this small room that doesn't have video surveillance, and he alleges that police beat him while in that room. He says that it spanned about 10 minutes. He says that he was kicked in the shins. He says he was punched in the face. And the whole time, the officers were allegedly trying to pressure him to confess to the robbery in that moment, something that he

refused to do in that moment. And that was, he says, why they were so violent towards him. Okay, so I'm assuming that this case went to trial. Tell me about what happened when it went to trial. So what happened in trial was his lawyer, Gil Kim's lawyer, tried to put forward a stay of charges, tried to get the judge to decide on that before actually looking at all of the evidence of the case. So I want to take you back to that moment when he's in that room. He says that he got blood on his shirt as a result of the beating, and that one of the officers, in fact, took his shirt off of him and went and cleaned off the

blood from that shirt and then brought it back to him. Speaking of a cover-up in that case. That's what he had alleged had happened then when he was taken into the actual video interrogation room. I'm positive that you're involved in this robbery. There's no doubt in my mind that you're involved. Okay? I'm just trying to find out the reason why he was

seated in a way that you couldn't see his face clear on which is not very common or not common at all i've never seen it before you watch you know the alec manassian video interview that just came out a couple months ago um russell williams is another one that a lot of Canadians will remember seeing the interview video of. In this block here. Okay. So you're pointing to... A detailed map of that area and all the triggers. And you see the suspect's face,

and it's different than the other co-accused who were also charged with robbery from this same cell phone store. So because of the fact that it looked so unusual, the judge really dialed into that fact. And how does it affect the case? Well, so the judge ended up kind of dissecting all of the different arguments around whether or not he was beaten

because the officers in this case said that he wasn't beaten, there was no cover-up, and they accused Gil Kim of lying about it. Ultimately, there was also a professional standards review that was done by a different police service, and they also found that there was likely no assault. But that is very different than what the judge in this case decided, because she was looking at this video and couldn't see any other reason for him faced in that way without

being able to see his face other than the fact that they were trying to hide the fact that there was blood on his shirt and trying to hide facial swelling so she decided that because of all of this evidence and the fact that she believed that there was a beating that took place in that police department and the the police officers involved had fabricated notes and been involved with a cover-up to show that it didn't happen or to make it look like it didn't happen. She decided that his charter rights had been breached as a result of that. And so therefore she stayed the charges. I understand as well that at some point he also had admitted to this crime.

So is it fair for me to say that this case was thrown out solely because the judge believed that the police had beat this guy up? Exactly. There was overwhelming evidence that Gil Kim had been a part of it. He had admitted to having done this robbery. And yet the judge was so incensed by what she was hearing from these police officers by their, quote, cavalier nature, she even talked about that in the course of her decision, that she decided that to not stay these charges would be an affront to justice.

Okay. So, Stephen, I know this is just one case that we just heard about, but I know you found others. You actually found 50 cases over the last five years where judges found police gave false or misleading testimony and the case fell apart. And this is across the country, right? Can you tell me a little bit more about what you found here? A lot of the cases we looked at, the question of someone's guilt or innocence wasn't really up in the air.

It was clear that somebody had drugs, had a gun, had both in their car. And instead of guilt or innocence being in question in court, what was in question was the police conduct. Did they have justification to pull someone's car over? Instead of guilt or innocence being in question in court, what was in question was the police conduct. Did they have justification to pull someone's car over? Did they have the legal right to search someone's backpack?

And in these cases, what's often found is that when the police conduct is put under a microscope by a defense lawyer and sort of aggressively challenged in court, as it was in the Gil Kim case, the case falls apart, not because somebody is innocent necessarily, but because the tactics that the police use and maybe the ways in which they retroactively try to justify those tactics to maybe cut corners or stretch the truth a little bit or in some cases actually fabricate evidence. That's the grounds on which the case actually falls apart. Okay. And we should be clear here, this information is based on findings from judges. Judges have looked at the evidence presented to them in a courtroom, and they have come to some sort of conclusion that these officers were misleading or gave false evidence. And they've written this in a decision or maybe said this aloud in a courtroom?

That's right. I mean, often judges will, thankfully, write down their decisions. Sometimes they're posted on the internet. Sometimes maybe a defense lawyer will release them. Sometimes you read about them in local media. But often, as I found, sometimes a judge simply makes their ruling orally. They say it out loud. Everyone who's in court hears it. If you're not in court and you don't know that this finding was made, then it can be difficult to track it down. Maybe you go to court and you fill out the paperwork, but otherwise these things sort of disappear into the air.

They get filed away. And if you don't know what you're looking for, then it's hard to find it. And do not even get me started on how difficult it is to navigate the court system in this country. It's like operating in the Stone Age and most of it is paper. And you mentioned local media reports. I've reported on a few of these cases of officers misleading or fabricating evidence in the past at the Toronto Star. And my colleagues at the Toronto Star did a big investigation in 2012. They found over 100 cases of cops misleading or fabricating evidence. It certainly seems like your work here is showing that this problem very much has persisted over the years. Chris? Well, yeah. And when we were speaking with some of the lawyers that we talked to,

to gather this story and to do the research behind the scenes, we did hear from police officers and also lawyers who had said that, you know, it's maybe not rampant, but it's certainly prevalent. And that's really the concern that a lot of those kind of insiders were saying. Right, right. This is something defense lawyers talk about amongst themselves a lot. You know, I understand you also came across a case where a judge was reticent to even write this down, you know, her finding essentially. That's right. I had spoken with a lawyer and he told me a story about a case that he had worked on. And you can read the judge's decision. It is available online. And I listened to the officer's testimony. And this officer claimed that while

standing, I believe at the driver's side of a vehicle that he had spotted pills in a pill bottle across on the other side of the car, that from his vantage point, he could see the lettering on these pills on these small pills in a bottle. And the judge ultimately ruled that she said, you know, to make that observation, this officer would have had something akin to x-ray vision. Unless you had superhuman eyesight, you could not have made this observation. Right. It just didn't make any sense. That's right. And before she said that, she told the folks in court, the Crown and the defense, that she was going to make a finding against this police officer. But that in her words, she does this very reluctantly when it has to do with a police officer.

And she suggested just giving her reasons orally. And that's what I referred to earlier. That would mean that this is recorded as an audio file, but essentially it's filed away. It's not, it's not public facing. It's not anywhere. Somebody who's not in the know could find it.

Yeah. And if we're going to turn this podcast into complaining about the court system, also so hard to get. Like you have to order it. You have to wait a very long time for it to come back. It's a nightmare. Absolutely. And in this case, what the defense lawyer told me is that he protested

and he spoke very favorably about the judge. He said he protested. She listened and he gives her credit for changing her mind. The decision is online. Anybody can go and read it. But it was it sounds like it took his protesting. And, you know, this was something that defense lawyers raised with me. They said judges are reluctant to make these decisions. They don't like making them. They might use euphemistic language. And this was, you know, I think proof of that. episodes of Dragon's Den free on CBC Gem, brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. Talking about why this might be occurring in the first place, Chris, I know that you interviewed

a former Toronto police officer for this story, and he offered some insight. And what did he have to say? So we spoke with James Lowry, who was a police officer in Toronto for 33 years before becoming a defense lawyer in Winnipeg, which I think in and of itself speaks volumes. The fact that he went from being one of those people who was trying to chase down bad guys to be one of those people. Yeah, exactly. Crossing the aisle. So he had a really interesting perspective also because he was with Toronto Police Internal Affairs. So he's investigating corrupt cops at the end of the day. That's one of his big cases that he worked on for about eight years apparently was a case where there had been drug squad officers in Toronto who were up for a lot of very serious offences. They face a string of charges dating back to the late 90s,

including allegations they beat up and robbed drug suspects and then falsified their notebooks, even lying in court to cover it all up. Five of them were convicted of attempt obstruction and three of them for perjury, for lying on the stand. This is a really famous case. Yes, very big case in Toronto that made waves across the country. One by one, the former drug squad officers make a final exit. At this point, I don't want to make it.

The sentence, 45 days, house arrest. So what he was saying from his perspective as being an officer who, you know, investigated other police officers, he was saying that he did see it from time to time, and it is very troubling. The defense lawyer will understand that the officer isn't telling the truth, and then through various cross-examination techniques, what you have is layer upon layer upon layer

of lies added to that, and that's where the damage happens. And his assessment of the situation was essentially that he was seeing one of two things. Either it was, you know, maybe laziness, and it was cutting corners to try to get to an end more quickly, or it was there had been, you know, a mistake that had been done, and they were trying to catch up. They were trying to correct their errors, I guess, by falsifying notes or by fabricating evidence. If you do the investigation properly, you don't

have to expedite by cutting corners, whether it be excessive force on a suspect or scripting, falsifying police notes or perjuring yourself in the stand. It can be done properly. And in that first scenario, what his point was, was that it was kind of this mentality where it's an ends justifies the means. So it's okay to bend the rules or break the rules, as he put it, if at the end of the day you end up getting a bad guy behind bars. The mentality of appealing to a higher authority, as he put it, if at the end of the day, you end up getting a bad guy behind bars.

The mentality of appealing to a higher authority, the idea that, well, we have to do this in order to clean up the streets to help the public. So that attitude has to change. Stephen, I wonder if I could get your thoughts here. You know, some people might be listening and they might be saying, so what? Like, so what if this guy, you know, just kind of fudged what he saw in the pill bottle, if it got him to like a drug bust, you know, you know, I'm not talking about the violence, but some of these other cases. Why is it important that officers, you know, uphold their duties? Why is this important to our justice system?

Right. I sort of think wherever you come down, like we're talking about a drug case in this instance, and I think wherever you come down on the issue of drugs and the legalization of drugs, if you are way to one side and you believe that all drugs should be illegal, that people who have them should be punished. Well, then in this case, you're getting the opposite of what you want, right? This officer gave false testimony and therefore somebody who had drugs on him, had illegal drugs on him, was able to go free. And if you are way at the other end of the spectrum and you think that drugs should be legal and that police resources should be spent on other things, then this case to you is just sort of further proof of that, right? You had police resources, you had the resources of the Crown, the time of the judge,

all towards this case that ultimately was thrown out. So no matter where you come down on it, it just doesn't seem like it's the best use of time and money and the resources of the justice system. Right. And of course, the idea that these cases are being thrown out, you know, it's based on these principles that we have, that we have to have a fair system, and that everybody has to follow the same rules. Because if you don't have like fairness, and you don't have this rules based legal system, you are like a dictatorship, right? Well, and that's exactly what some of the judges in some of these decisions had talked

about. The fact that it would be an affront to fair play and an affront to justice because, you know, if this can be allowed to happen, then everybody's at risk. That's essentially the fear. I would just add that, obviously, like I said, we focused on cases where police seem to have caught somebody with drugs or with a gun. But also these cases sort of raise the question, and you asked why is it important to sort of not condone this kind of behavior. I mean, what you see in these cases is it seems like police often

have hunches. And in the cases that we looked at, police have a hunch and it turns out to be right. They stop someone because they think that person might have drugs and it turns out that they're right. And then when their testimony is found to be false, the case is thrown out. But I mean, the question you should ask is, is this the only time that the officer did that? How many times have they had hunches that turned out not to be true? How many times have they pulled someone over because they had a hunch and actually this person doesn't have drugs, this person doesn't have a gun and they've been pulled over and harassed for no reason. And now they were just subjected to a search.

I want to talk to you a little bit about potential consequences here. So, you know, you mentioned before that in one of these cases, in the case of Gil Kim, another police force investigated and they couldn't back up that, you know, he had been physically assaulted. You know, when judges find the police officers mislead or fabricate information, you know, are there any consequences here? There can be. I would say the Toronto police gave me sort of the most fulsome response to the questions that we sent to different police services. But they said that provincial legislation prevents them from commenting on things like disciplinary action unless it actually results in a public tribunal appearance. So there is. There's like more informal kinds of ways that police officers can be disciplined.

It's not public. Exactly. So if they go that route, then you or I won't know about it. There can be public tribunal appearances for police officers who've been found to have committed misconduct. Just as one example, I went through several years of disciplinary records, public disciplinary records for Toronto and saw very few instances. I would imagine a lot of these things are dealt with internally. And also, I should say, a lot of police services

just disagree with the judge's findings and say that there is no misconduct here. Okay. And, you know, I know in the wake of the STARS investigation a couple of years ago, you know, I keep thinking that this problem is really persisting.

At least Ontario made it mandatory for crowns to have to report, you know, cases where judges found like fabrication. What do we know about what's happened, how that's worked, you know, if there's anything that's being done to try and mitigate this? Right. So in Ontario, I believe the policy is that crown counsel has to flag cases where a judge has made what you would call an adverse credibility finding to use some technical language against an officer. It's got to be kicked up the chain and it might be referred back to that police officer's service for investigation. There are policies in different provinces that sort of range from similar to Ontario's to no policy at all. And then federally, there is

the Public Prosecution Service of Canada, which prosecutes a lot of drug cases, other crimes, and they have a policy as well that's similar, where they have to flag these things, they discuss them internally, and then I believe it might be referred back to the police services. But I mean, you've asked about consequences. Sometimes I was able to determine, you know, that a crown did refer a case back to the police service. But when I just asked the Public Prosecution Service of Canada, here's a list of cases I know you flagged as problematic. Just tell me which ones did you refer back to the police? Which ones did you ultimately decide were worth referring back to the police? They wouldn't respond. Well, the other really tricky thing about all this too is that in the 50 cases or more than 50 cases that we put together, we did see repeats. Some officers up to three times were noted in the

course of our investigation. So the fact that we're seeing people show up more than once in this database, I think speaks a little bit to the lack of consequences. Right. And I know there are a lot of incredible police officers out there. And I know from my personal experience that nothing bothers them more than these kind of stories. Chris, Stephen, thank you so much for being here. Thanks, Jamie. Thank you. Some news out of Ottawa for you before we go today.

Prime Minister Justin Trudeau and opposition leader Andrew Scheer had their first meeting since the election. They were looking for common ground before Parliament reconvenes next month. Here's what they had to talk about, according to Scheer. The very real crisis that our country is in is it relates to national unity. So I spoke about how my proposal of a national energy corridor merited some work and some study. I spoke about the need to demonstrate a roadmap for the Trans Mountain pipeline to be completed. I should note, this meeting where the two leaders were hoping to find common ground, well, it lasted less than 30 minutes. That's all for today. I'm Jamie Poisson. Thanks so much for listening to FrontBurner and see you tomorrow.