Wednesday, 2 May 2012


PLEASE NOTE: Some of my article has a white background. I don't know why that is. It has no significance as to what I am saying in the article.

There is very little that is more frightening than listening to a cop on the stand lying about what you as a defendant allegedly did.

When a cop lies in court, do trial judges and appellate courts let them get away with it? It appears that in many cases, the answer is yes. Unless it is absolutely obvious that the cops were lying, trial judges usually put their rubber stamp on what the cops say. When the case goes up on appeal, the appellate courts generally go along with whatever the trial court decided was truthful, leaving defendants and appellants with little recourse in fighting against lies told by the police officers during the defendant’s trials.

The District Court of Appeal in Florida quoted from an article published in The Nation, which was published on May 8, 1967 titled The Perjury Routine. In the article, it said in part:

“Policemen see themselves as fighting a two-front war—against criminals in the street and against ‘liberal’ rules of law in court. All’s fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed. It is a peculiarity of our legal system that the police have unique opportunities and unique temptations to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding is almost always necessary to determine what actually happened.” unquote

The profusion of those kinds of cases requires trial judges — the gatekeepers of
every defendant’s rights, to critically evaluate the testimony given at hearings and trials. Many cases in which cops have testified under oath call into question the fairness of some trial court proceedings. On the pages of the record, some of the stories told by the police are unbelievable — such as an anonymous informant gave incriminating information; police surveillance uncoverering no criminal conduct; the defendant being “nonchalantly” and “casually” approaching the police on the street; the defendant cooperatively lead the police back to his apartment to obtain his identification and inviting the police inside, where a detective claims he saw contraband in plain view, and after his arrest, the defendant supposedly telling the police about all the hidden drugs in the apartment—all of it lies by the cops giving their testimony under oath.

On January 12, 2011, the Fourth District Court of Appeal in Florida made the following observation about cops who had testified that they were given consent by an accused to enter the accused’s home when in fact; no such consent was given by the accused.  The court said in part;

“As an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person’s home, but were the factors bearing on the involuntariness of the consent scrutinized with special care? Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of ‘consent’ cases that have come before us, the finding of ‘consent’ in so many curious circumstances is a cause for concern.” unquote

Other cases of cops lying in court

Much of the following information that follows in  this article,  I got from reading three articles written by David Bruser and Jesse McLean who are staff reporters with the Toronto Star. I have reworded their articles in most instances in order that my article is consistent with my own style of writing and I have further added my own commentary throughout my article. I am grateful to them for their thorough investigation and their well written report on this horrific problem of cops lying under oath during criminal trials.

A former boxer in British Columbia was accused by the police of heading an international drug trafficking ring. At his trial, he was acquitted of all charges after a judge found that two senior RCMP (Royal Canadian Mounted Police) officers gave false evidence at trial. Their lies occurred when Cpl. Martin Stoner and Staff-Sgt. Peter Lea appeared in court to explain errors, false statements and omissions in affidavits used to get authorization from another judge for wiretaps against the accused. As a result, B.C. Supreme Court Justice Peter Leask excluded the wiretap evidence, prompting the Crown (prosecution) to say it had no further evidence to call. Leask then acquitted former boxer Robert Della Penna, 39, and three co-accused, Casey David Wells, Robert Muoio and James Mickelwright.

 The judge later said, “I acknowledge the charges are serious ones and the allegations against Della Penna are very serious.” he acknowledged that Della Penna was accused of heading an international drug trafficking ring that exported B.C. marijuana and ecstasy to the U.S. and imported shipments of cocaine. He said that Wells was accused of managing sophisticated marijuana-growing operations for Della Penna, Muoio was Della Penna’s assistant and Mickelwright was the intended recipient of shipments of eight, 10 and 20 kilograms of cocaine that were intercepted by police. The cocaine was allegedly to be distributed in Ontario.

Della Penna, 39, was charged with drug trafficking after he was arrested in 2004 during a reverse-sting operation in Richmond with an undercover officer posing as a Colombia cocaine dealer. He had delivered $575,920 Cdn cash to buy 25 kilograms of cocaine, with the second 25-kg. shipment to be delivered within 24 hours. Police had also secretly watched the stocky Della Penna and Wells deliver buckets of Kentucky Fried Chicken and Safeway deli platters to a home in Mission, where 49 hungry people were harvesting marijuana.  The harvesters were found in the home during a police bust, which resulted in the seizure of 1,448 live plants and another 1,427 dried plants.

In an oral ruling to exclude the wiretap evidence, Judge Leask found Stoner had purposely violated Della Penna’s constitutional rights by giving misleading information to the judge who originally authorized police to wiretap Penna’s phone calls. In his ruling, Leask found that Stoner failed to disclose all material facts — specifically that police had informants in Montana and Calgary — to the judge who initially authorized a wiretap operation against Della Penna, allowing police to secretly listen to phone calls.
The judge said that the police also met with U.S. customs officers and Drug Enforcement Administration agents in Montana in 2003, where authorities disclosed they had received information from informants in Montana.

In his court testimony, Stoner said he forgot about the Montana informants so he hadn’t mentioned it in his affidavits. The judge said. “I find as a fact that he was lying to this court.”

Judge Leask also said;

“I have found a series of serious breaches of the Charter (of Rights) involved in the unconstitutional interception of communications in this case.  I did not believe Corporal Stoner’s evidence on this subject.

The judge had rightfully concluded that both officers had committed serious misconduct by lying in court during their testimony as they tried to explain what the judge called false statements in the wiretap affidavits.

The judge further said that the police cannot take shortcuts and violate a person’s Charter rights during an investigation. He added;

“In my view, permitting police to ignore the requirements for full, frank and fair disclosure, and allowing the unconstitutionally seized evidence to be introduced in court would strike at the heart of our system of judicial supervision of the state’s intrusion into the lives of its citizens.” unquote

In his ruling, Judge Leask found that Stoner failed to disclose all material facts — specifically that the police had informants in Montana and Calgary — to the judge who initially authorized a wiretap operation against Della Penna, allowing police to secretly listen to phone calls.

The judge further said that Stoner had stated in two affidavits that “there are no informants” and then in another affidavit, he said an Alberta informant was providing information about Della Penna’s drug trafficking activities with a Calgary man. That was stupidity on Stoner’s part.

The judge said that police surveillance officers observed Della Penna flying to Calgary on December 9, 2003, where four kilograms of cocaine were seized.

The judge, detailing the history of the police handling of the Alberta informant, said Stoner must have known about the Alberta informant by the fall of 2003 but swore two false affidavits failing to disclose the material fact.

Lea testified that he first met with U.S. authorities in October 2003 and discussed the Montana informants, who said Della Penna was transporting cocaine through Montana.

Lea assigned Stoner on October 31, 2003 to liaise with U.S. agents about their “intelligence on Della Penna. Lea testified he had a conversation with an Alberta officer about the Alberta informant, but admitted he had no notes of the conversation.

Judge Leask said about that cop’s testimony;

“I do not believe Staff-Sergeant Lea on this point and I find as a fact that he was lying to the court. A frustrating aspect of this informant evidence is that neither Staff-Sergeant Lea or Corporal Stoner seem to grasp the true significance of the issue. Full, frank and fair disclosure means all the material facts must be disclosed to the authorizing judge.”unquote

The judge also said;

“It’s not for the investigators to pick and choose among the relevant facts and tell the authorizing judge only about the best investigative strategy.”unquote

Because of the lying by the police officers to the judge who authorized the wiretaps, three very bad criminals were set free even though they committed the crimes the police were investigating.

Toronto police officers, Jay Shin and Joseph Tremblay testified under oath that they stopped Delroy Mattison's Chrysler Intrepid on the afternoon of July 18, 2011, because they saw him using a cellphone. It is against the law in Ontario to use a cellphone as a driver while the car is in motion. They were visibly nervous and papers were shaking in their hands while giving their testimony in court because the officers were lying while giving their testimony under oath and when doing so, they were not lying very well—and they knew it.

In Mattison's trunk that summer day were a stainless steel .357 Smith & Wesson revolver and 31 bullets. Mattison, who had a previous conviction for armed robbery, was on his way to a drug deal. Under the law, these officers needed a reason to stop and detain Mattison. Without one, they would never have found the gun and bullets. They used the cellphone pretext to stop the car and search it.

The problem facing the two officers in court was that they never seized a cellphone or noted the existence of one in the paperwork filled out at the scene. That night, a third officer snapped photos of the impounded Chrysler's interior, in which none of the pictures showed a cellphone in the car. Further, none was found on Mattison and Mattison’s supposed cellphone wasn’t placed in the property room in the police station. Obviously, the officers didn’t see Matheson using a cellphone while driving his car. Justice Nancy Backhouse ruled after hearing the two cop’s testimony;

“Officers Shin and Tremblay were untruthful about seeing Mr. Mattison using a cellphone. This court must dissociate itself from (this) serious and deliberate misconduct.” unquote

She refused to accept the evidence and subsequently Mattison walked free even though he actually had an illegal firearm and bullets in his car. Judge Backhouse was trying to send a message, one being repeated by concerned judges in courtrooms across the country when she said;

“Police dishonesty makes a mockery of the courts, undermines the public's trust in the justice system and must be condemned. There is little evidence anyone is listening.” unquote

After listening to Justice Backhouse rule that Officers Shin and Tremblay lied and the gun and bullets they found was inadmissible, Delroy Mattison, clutching a small, yellow Bible, bowed his head, smiled and walked out of building a free man. He later said;

“The officers fabricated their story. They did as they felt. They lied. They go to school for training. Someone should ensure the police are not breaking their own code.” unquote

Alas, that isn’t really happening in Ontario.

A nationwide Toronto Star investigation  shows that judges are frequently finding that police officers really do lie under oath. The dishonesty comes with little consequence to the officer, particularly in provinces such as Ontario where there is no law or policy requiring a prosecutor or police force to investigate the courtroom conduct. Further, there doesn’t appear to be any real interest in solving the problem by the police chiefs in that province with very few exceptions.

Back in 1978 when I was a syndicated newspaper columnist with the Toronto Sun, I happened upon a very large warehouse fire and was taking pictures of it. A real snotty cop ordered me out of the area. I refused to leave after I told him that I had already received permission from his superior to remain in the area—which I had actually received such permission.

I filed a complaint against the snotty officer and when he read it, he decided to charge me with obstruction of a police officer. During the trial, he denied that I told him that I had received previous permission to remain on the scene. He further told a number of lies relating to him reading my complaint before he laid the charge. He said that he never saw it. But he had too have seen it because there was no other way he would have known what my unpublished phone number was or my date of birth. He also  testified that he saw my date of birth on my private investigator’s licence. Unfortunately for him, the date of birth of private investigators isn’t put on such licences. Further, he hadn’t written anything in his notebook at the time of our meeting and it wasn’t until much later that he wrote something in the last page of the notebook relating to our meeting.

I attended a meeting with the Police Board and the chief told the Board that he told the cop that if I complain anymore against him, he should sue me. I then filed a complaint against the chief of police for that remark. The chairman of the board sent me a written apology for the actions of the chief but the Board dismissed my complaint against the snotty cop with respect to him giving false testimony in court.  

Many years later, the snotty cop became the chief of police of a small police force in a small Ontario town. I decided that this was the time to hit him real hard. Being fired as a constable is one thing but being fired as a chief of police is quite something else.

I sent my complaint along with the transcript of my trial to the Ontario Police Commission. The chairman said that the Commission wasn’t going to look into my complaint. I then filed my complaint against the chairman with the Ombudsman of Ontario. She wrote him a letter and sent me a copy in which she told him that if he didn’t investigate my complaint against the cop, she would. Within a month, the Commission ordered a hearing. It turned out that the mayor of the community this particular bad chief was working in also wanted a hearing before the provincial police commission for wrongdoings of the chief while he held that position in his town. I sent the mayor a very thick report about my investigation into his chief’s background along with the transcript of my trial.

After the hearing, the provincial police commission recommended to the city council that hired the chief that they fire him. The Commission said that he acted as if he was Caesar. The mayor invited me to address the city council at their fitness hearing of their chief. Before I addressed the council, two of his friends praised the chief and I was the third and last person to address the council even though there were at least 200 people present at the hearing. Just before I condemned the chief, I gave the following statement.

“I find myself in a similar situation not unlike that of Mark Anthony when he was addressing the citizens of Rome on the demise of Caesar.”  I then pointed to the chief who was sitting fairly close to me and then I continued;

“Mark Anthony said; I do not appear before you to praise Caesar. I am here to bury Caesar.”

The place exploded with laughter and applause. And bury him I did. He was fired within the hour and the last I heard of him, he was working as a security guard somewhere in Ontario.

Later, the federal government ordered that I be pardoned and that my conviction be expunged and I was later informed that there is no record anywhere that I was charged, tried or convicted of any crime. Unfortunately, many victims of police lying in court don’t have the ability or patience to go after rogue cops like I do. I waited patiently for seven years until I was convinced that his fall from grace would destroy him permanently. That rogue cop must have envisioned that happening during my trial when he was overheard to say that he wished he had never met me.

Though some may believe it is acceptable for officers to lie after taking guns and drugs off the street, the Toronto Star found the cost of the deception to community safety across the country is high.

The following suspects have walked free after officers lied in court: an accused pimp of a teenage girl, possessors of child pornography, a major ecstasy manufacturer operating out of a Scarborough house, members of an international data-theft and fake-credit-card ring, marijuana growers, and drug dealers carrying loaded handguns. Judges have discarded as evidence at least $40 million worth of cocaine, meth, ecstasy and weed in recent years because of false evidence being given under oath in the courts by police officers. Some accused persons who were freed at their trials as a direct result of police lies, continued to commit more crimes. Society obviously suffers as a direct result of police giving false testimony in court.  

One of the biggest prosecutions in the province of Ontario involved Chuck Wan Leong, accused of operating an ecstasy lab in his two-storey brick house. Police had discovered $16-million worth of ecstasy, methamphetamines and ketamine in his basement.

In that case, Justice Nola Garton said various parts of York Region Detective Robert Worthman's testimony were “inconsistent and inaccurate,” “exaggerated,” “almost inconceivable,” an “embellishment,” “misleading,” “nonsensical” and “patently absurd.” The judge then threw out the evidence and Leong walked free.

This time, this dishonest cop was charged by his police force with deceit and discreditable conduct. I don’t know what has happened to him at the time of this writing.

Some judges have arrived at the unhappy conclusion that some police officers really do lie in court to cover up shoddy and illegal investigation techniques, excessive force, and racial profiling. The majority of the cases reviewed by the Toronto Star involve police officers who, out of laziness, overzealousness or poor training, violated laws that protect suspects from abuse of police power, had found damning evidence and then lied to cover up their flawed investigations.

“It's the coverup that kills,” said one Ontario judge. We all know what happened to the late President Nixon when he was involved with the outrageous coverup in the Watergate fiasco. He was forced to resign.

Police officers do have a difficult job and usually they know who the criminals are, but some police officers play hunches to arrest suspects, then they make up evidence to otherwise patch their investigations that are going nowhere.

Years ago, I worked as a private investigator and one day a fellow investigator told me a story about when he was a police detective in London, England. He said his team had been unsuccessful if finding evidence against the leader of a criminal gang so they broke into his house, went to his bedroom and then gathered semen from his bed sheets and placed the semen on the back seat of his car and then got a prostitute to lay a charge of rape against the gang leader. She swore (falsely) that she was raped on the back seat of his car. He naturally denied it and said that he had never seen the woman before and had never been on the back seat of his car.  Another investigator from the crime lab testified that the gang leader’s semen was on the back seat. He was convicted of rape and sent to prison for a number of years.

Now there is no doubt in my mind that the gang leader was a man who should have been sent to prison for the other crimes he committed but certainly not for a crime he hadn’t committed.

Years later, that private investigator’s boss, was complicit with the framing of an innocent man who worked in a factory. The owner of the factory wanted the investigation firm to find evidence that the man was stealing items from the factory. 

They were unsuccessful. Then the president (a former cop whom I had successfully filed a complaint against) of the private investigation firm became aware that one of his undercover agents had placed an item for the factory in the locker of the man they were investigating so that they could close the case with the arrest of the worker. The president of the investigation firm did nothing to show that the man was innocent. It turned out that at the man’s trial, he really was innocent and that someone had seen the undercover man place the item in the defendant’s locker. The undercover man and the president of the private investigation were sent to jail. The investigation firm was subsequently closed down by the government.

While police officers can randomly stop vehicles to check vehicle safety or a driver's paperwork, they must otherwise have reasonable grounds to believe an offence is being committed to stop a car, detain a person or search a house. Mere suspicion is not enough. The exception is during Christmas season when cops can randomly pull over vehicles to determine if the drivers are impaired.

Suspicion is all RCMP Constable Brian Sprott had in January 2009, on a rainy night in Maple Ridge, British Columbia. Sprott and his partner sat in their unmarked vehicle and watched a suspected drug house on Dewdney Trunk Road. Then, on a hunch, they followed Chris Xiong after he pulled out of the driveway. This was a drug investigation they were conducting and not a vehicle or driver safety check.

The Mounties stopped Xiong and found 12 individually wrapped, $40 crack rocks, three cellphones and more than $800 in cash. Sprott testified at trial that he stopped Xiong for speeding. The alleged speeding, as well as Sprott's claim that crack rocks fell onto the pavement when the suspect exited the vehicle, gave the Mounties their reasonable grounds.

But Sprott had earlier testified during a preliminary hearing that he intended to stop Xiong before he allegedly sped from his house. The Mountie was asked if his answers at the preliminary hearing were true and “(he) answered rather remarkably, ‘At the time, they were true,'” Justice Kathleen Ker noted.

She added;

“Constable Sprott appeared evasive and uncomfortable when questioned on this point.”

On the witness stand, the Mountie, who hadn’t issued Xiong a speeding ticket, shrugged and awkwardly grinned like the Cheshire cat in Alice in Wonderland. He realized that he had just been caught in a lie.

The judge said;

“There is a legitimate public interest in having police officers provide their evidence to the court in an accurate and careful manner.”

The judges who slammed the officer's “flip-flop” ruled there was no legitimate reason to stop Xiong's car, so she threw out the evidence and let the accused walk.

Sprott could have saved himself and his force the embarrassment that followed his lying under oath at the trial of the man he arrested had he done proper police work, such as continued surveillance of the house or car.

These bogus traffic stops and warrantless searches have led to wasteful prosecutions that tied up the taxpayer-funded courts and put alleged criminals back on the street. There is something definitely wrong here.

Though the judges in these cases recognize that such large seizures of drugs, loaded guns and “highly reliable” proof of other serious crimes “cry out for a trial on the merits,” they find the police misconduct is the greater sin.

Angered at police lies in his courtroom, Justice Peter Hambly explained his difficult decision to stay charges against two men accused of operating a $16-million marijuana grow-op in Niagara Falls region:

“For the people involved in it to go unpunished leaves a sense of betrayal in hard-working, law-abiding people,” Hambly said, but he added: “If police lying is tolerated by the courts, they will soon lose the respect of the community.”

Hambly's decision is being appealed. I am not convinced that the government’s appeal will be successful. If it is, that means that rogue cops can lie in court with impunity and innocent people can go to jail. It would also mean that there are two laws—one for the police and one for the general public.

The Toronto Star searched court judgment databases to locate cases since 2005 where judges found that officers had misled the court. The 100 cases, from Victoria to the Northwest Territories to Halifax, involved more than 120 officers denounced by judges for outright lying, misleading or fabricating evidence. The search also revealed;

They learned that some of the words judges used to describe police evidence and testimony were “lie,” “fabricate,” “evasive,” “absurd,” “ridiculous,” “subversive,” “disturbing” and “pure fiction.”

Two officers — one in Victoria, the other a Toronto detective — have each misled the court in two separate cases. Toronto officer, Detective Scott Aikman, has twice been accused of being untruthful by judges in two different cases.

The first time Toronto police Detective Scott Aikman deceived the court, a judge denounced his “misleading” testimony and threw out a cocaine charge against a man.
The second time, Detective Aikman’s story explaining why he and his partner searched a minivan led to the acquittal of four suspects accused of masterminding an international credit-card data-theft ring.
Aikman “either fabricated or concealed evidence” to justify the van search, the judge said. The four suspects, charged with a total of 321 offences, walked free.
Was Aikman disciplined for his conduct in court?
“No. Of course not,” said Aikman, explaining to the Toronto Star reporter that he had done nothing wrong.  If you are gullible and believe that, I have some exciting news for you. The world really is flat.
 The chief of a suburban Winnipeg police force was charged with perjury and his force taken over by the RCMP after he allegedly lied to cover up details of his former partner's role in a fatal drunk driving accident.
In several cases, officers assaulted a suspect, and then they began their coverup by charging their victim with assaulting and obstructing police. Some of the victims were guilty of nothing more than a bad attitude and that in itself is not a crime.

Racial profiling, and the subsequent police deception meant to hide the misconduct from public view, cost the people of 100 Mile House, B.C., the prosecution of Zai Chong Huang and the 57 marijuana plants found in his Dodge pickup by RCMP Constable Berze.

Berze testified that he had he stopped Huang's truck because it swerved in its own lane. The judge noted that Berze followed Huang for many kilometres before the alleged swerve of his truck. For this reason, and because of the wording and emotion of Berze's interview of Huang after the arrest, the judge found the so-called swerve of Huang’s truck was a “pretext,” and that Berze likely saw Huang at a gas station earlier in the night, noticed he was Asian and assumed he was involved in organized crime.

“Constable Berze was being untruthful with the court,” said B.C. Judge Elizabeth Bayliff.

The Toronto Star found 28 cases since 2005 that involved a total of 34 Toronto officers determined by judges to have misled the court in their testimony.

Toronto Police Services Board chair Alok Mukherjee told the Toronto Star that he has raised the issue with senior police officials and has been met with “a certain frustration and defensiveness. They'll say, ‘The officer was being diligent and the judge was more interested in the Charter rights of a criminal than the fact that the officer found a gun, and they let that person go.'” Mukherjee added; 

“I have some degree of frustration because I believe judges should be listened to.”

In a combative letter to the Toronto Star, spokesperson Mark Pugash equated the language used by judges in the cases reviewed by the Toronto Star to “throwaway comments unsupported by evidence.”

He said;

“You either don't understand, or you don't want your readers to understand, the fundamental distinction between a judge's comments and a judge's rulings,” Pugash continued. “Without an understanding of such a basic point, your story cannot be taken seriously. A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt.” unquote

Give me a break. Doesn’t this man realize that if a judge dismisses a case against a defendant despite the fact that there is sufficient evidence to convict him but instead chooses to ignore that evidence because of the false testimony given by the police, that that in itself is sufficient reason to believe that the cop had lied under oath? 

Pugash also said;

“The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence.” unquote

I need another break. How can this mouthpiece for the Toronto Police Service have the audacity to suggest that the trial judge who has heard and seen all the evidence, make comments that are unsupported by the evidence?  Does he not realize that often when a trial is conducted by judge alone, that the decision of the judge is in fact really the judge’s commentary on what he has seen and heard as evidence?

Pugash said the onus is on defence lawyers, prosecutors and judges to report their concerns over an officer's testimony to police for investigation. I do agree with him on that point. But this doesn’t mean that the trial judge shouldn’t express his opinion. After all, he has to explain why he sets free an obvious criminal.

The cases in the Toronto Star study show that judges painstakingly reviewed and deconstructed the facts, testimony and physical evidence presented in court, and concluded that the police officers had lied when giving their testimony under oath.

The 100-plus cases found by the Toronto Star represent only a fraction of the problem of police lying in court. One reason is that not all judgments are disseminated to the public. Another reason is that when confronted with police dishonesty, some judges are reluctant to call it by its name, instead choosing innocuous language when assessing flawed officer testimony.

One Ontario judge interviewed by the Toronto Star explained that rational;

“It's difficult to accuse someone who works so hard in the public interest of misleading the court.” unquote

I personally don’t accept that at all. If a rogue cop is lying in his testimony in court, a judge should have no difficulty at all in accusing that cop of lying in his testimony. Some lies are so obvious and blatant, the lying cop cannot escape the spotlight, especially when video or audio gives everyone in the court room the unadulterated truth.

A video shot by civilian eyewitnesses exposed the lies of two Calgary officers who beat Jason Arkinstall while he was handcuffed. Then these two rogue cops had the temerity to charge him with obstructing, threatening and assaulting an officer.

The video, shot after 3 a.m. on August 31, 2008, the weekend of a tattoo convention, showed that Constable Brant Derrick was smacking Arkinstall in the back of his head and throwing him head first and onto his stomach in a police van's rear caged compartment. Arkinstall was thrown with such force that his flailing legs almost hit the van roof. “In an obvious burst of anger,” Judge Terry Semenuk said, “Derrick slammed the van doors on Arkinstall's leg.”

Judge Semenuk acquitted Arkinstall of threatening Derrick. The other two charges were dropped by the prosecutor before the trial. The officers, the judge said, were “unreliable and not credible.”

Now comes the lies in court. When Constable Derrick was in the witness box, he didn’t know that a video of what had happened actually existed so when Arkinstall's lawyer asked him if he struck Arkinstall before throwing him into the van and slamming the van door, this is what is in the transcript of the trial.

Derrick: “It didn't happen.”
Lawyer: “Didn't happen?”
Derrick: “No.”
Lawyer: “You're sure of that.”
Derrick: “Yes. I'm sure of that.”

The rogue cop was lying through his teeth. Would he have said that if he had seen the video first? Not likely.

Montgomery County Police Officer Dina Hoffman also lied through her teeth when she arrested George Zaliev for driving under the influence of alcohol in the State of Maryland a couple of years ago. Hoffman claimed Zaliev was passed out in the front seat of a car in a parking lot with the engine running when she had to shake him awake. She wrote that in her report. And she later testified to that also in court. Eleven times to be exact. But that was before she was shown a surveillance video that showed Zaliev was actually passed out in the backseat of the car in which the engine was not running.

Officer Hoffman was later charged with perjury while the charges against Zaliev were dropped. Later a jury found Officer Hoffman not guilty of perjury, proving once again that cops have a license to lie.

Officer Hoffman, 26, claimed that the discrepancy of what actually took place and what she claimed took place was a simple result of a “mistake” on her part or as her attorney called it, “a faulty memory.” I think I could convince that jury that the world really is flat. And if they asked me for proof, I could convince them that the only proof they would need would be the word of Officer Hoffman and her attorney. 

The problem of lying cops is greater than you think
A coast-to-coast  Toronto Star investigation found more than 120 police officers in the more than 100-plus cases have been accused by judges of outright lying, misleading the court or fabricating evidence since 2005 and many of those officers have gone unpunished.
There is so little oversight of the problem that in some jurisdictions police forces did not know judges found that their officers misled the court. Internal investigations into four cases — three in Peel, one in York — were started after the Toronto Star brought the courtroom misconduct to the police departments’ in those districts attention. Compounding the lack of oversight is a lack of accountability to the public.
Big-city forces, including Montreal and Calgary, refused to say whether their officers were disciplined. Even at the Toronto Police Service, where at least 34 officers who have come under fire from judges for being untruthful in court in recent years, there is little indication that Chief Bill Blair considers the judges’ findings a call for change. That doesn’t surprise me at all. He is in my opinion one of Toronto’s worst police chiefs it has ever had.
On the other hand, the chair of the civilian oversight Toronto Police Services Board, Alok Mukherjee, told the Toronto Star that he is troubled by this “serious issue” and wants something done to stop the lies from eroding the public’s trust in his police force. He said;
“If we say a police officer takes an oath of office to uphold the law, if we require that they must be of good moral character and integrity then someone who is found to have lied or falsified their notes, can they be said to be upholding their oath? Can they be said to have demonstrated integrity? My simple, non-legal mind says: That’s misconduct.” unquote
The Star sent letters to police forces across the country asking how they responded to the judicial findings questioning their officers’ credibility. The reactions ranged from being receptive to being unaware to being dismissive.
In Edmonton, where judges found at least nine officers have been misleading or not credible, one was found guilty of three counts of insubordination, while two more are awaiting disciplinary hearings. Two others are currently being investigated. Chief Rod Knecht said the force has a range of disciplinary measures for officers found to have been deceitful, from re-training and fines to termination. Chief Knecht told the Toronto Star;
“The credibility of a police officer is sacrosanct. Our entire profession is based on the principle that police officers will act and be held to a higher level of accountability. Every instance of deceitful behaviour damages the collective reputation of police everywhere. Once damaged, that reputation is hard to restore.” unquote
In my opinion, a police officer who perjures himself or herself in court should be charged with perjury and if convicted, dismissed from the police force. The reason is obvious. Just as society frowns on child molesters who are later convicted of those crimes being permitted to work in day cares, police officer’s can never be trusted to give honest testimony in a court room again and even if they could, a defence lawyer would raise doubt in the mind of a jury if he forced the reformed police officer to admit that he was previously convicted of giving perjured testimony in a court room.
I wish that was the feeling of all the police chiefs in Canada and elsewhere.
While OPP Commissioner Chris Lewis said the force “takes any allegation of wrongdoing against its members seriously and will investigate,” he questioned whether a judge’s “opinion” is “correct or proven.” Lewis said criticism of the “quality and truthfulness of officer testimony is rare.” Where the force finds such cases, the officers could face additional training or supervision, or disciplinary action. In contrast to that statement, in two cases where judges found Ontario Provincial Police officers’ testimony and evidence was misleading, none of the officers were formally disciplined. The Commissioner’s statement was from a man who runs the Ontario Police Farce. (No! That last word was not a typo.)
At the Toronto force, Chief Bill Blair chose not be interviewed. His spokesman, Mark Pugash, accused Toronto Star reporters of bias and said, “Your story cannot be taken seriously.”
Let me give you some more of Pugash’s drivel as he refers to the Toronto Star’s three articles.
“A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt. The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence. You either don’t understand, or you don’t want your readers to understand, the fundamental distinction between a judge’s comments and a judge’s rulings.”
Toronto defence lawyer Reid Rusonik disagreed with Pugash’s comment when he said;
“How can there be any accountability or a proper disciplinary process in place if they don’t even allow for the possibility that officers lie? It’s surreal.”
Rusonik knows what he is talking about. In the last few years, he has exposed police fabrications in more than a dozen cases across the GTA, six leading to the acquittal of clients charged with possession of a handgun.
Mukherjee, Toronto’s Police Services board chairperson said that judges should not be ignored. He has raised the issue with Toronto Police Services brass in the past but has been met with a defensive rationale from the police that while police are catching bad guys, judges are letting them go on legal technicalities.
British Columbia seems to be the only province in Canada with a formal reporting system in place. If a judge criticizes the truthfulness of a witness’ evidence or testimony, the prosecutor is expected to report it to a senior Crown attorney. The prosecutor is also expected to recommend to the police force that it investigate alleged misconduct.
In Ontario, no one tracks instances where an officer’s credibility has been brought into question. Ontario’s Ministry of the Attorney General said that it is a police force’s job to investigate lying officers. That is assuming of course that someone tells the police. However, I would be remiss if I didn’t mention that if the Toronto Star hadn’t published its damming report on lying cops, the province’s attorney general, John Gerretsen would still be in a fog that people who faint are in when it comes to what he was going to do about lying cops. The Toronto Star wafted smelling salts under this man’s nose and he awoke from his state of semi-unconsciousness about lying cops. His eyes open wide and he finally saw what others had seen for years—some cops really did lie court and nothing was being done about it. 
He announced that he would consider a mechanism or policy that takes the allegations of lies by police officers when they give their testimony in court and move it to the appropriate authorities for investigation. He said in part;
“If there is a way in which we can improve the system so that people can have complete faith in our criminal justice system, we would definitely look at that, no question about it. The point is quite simply this: our system is based on people telling the truth in court, whether they are the police of anyone else.” unquote
The attorney general said that he is going to raise the matter in a regularly scheduled meeting with a group of chiefs in Ontario. He will also discuss the matter with justice officials in other provinces and at the federal level.
Aren’t smelling salts wonderful? They not only make people become conscious again, it also makes them open their eyes wide and see what they hadn’t seen earlier.
Pugash said the Toronto force had completed 12 investigations into alleged courtroom misconduct since 2010 and it found no evidence of wrongdoing with respect to false testimony. He said the force only learned of the majority of these cases from media accounts of trials. He said defence lawyers and prosecutors have a responsibility to alert police to allegations of officers lying in court.
On that point, he is correct.  Yet there was no requirement for a Crown to report dishonest testimony. It is the discretion of a prosecutor to contact the deceitful officer’s superiors. Some do, some don’t. Those that don’t are betraying the trust given to them as solicitors for the crown. As a consequence, police misconduct is continuing to go unpunished.
Apparently no one from Peel Police knew when Justice Steven Clark found two of the force’s officers were “misleading” when explaining why they illegally entered a suspect’s apartment. He said in court;
“Few actions more directly undermine both goals of the integrity of the judicial system and the truth-seeking function of the Court than misleading testimony from persons in authority.” unquote
It was only seventeen months after the ruling, when questions from the Toronto Star brought Justice Clark’s ruling to the force’s attention. It was then that the Peel Police began investigating the two officers Justice Clark had accused of lying in court.
The British Columbia reporting policy and the case of RCMP blood-spatter analyst Ross Spenard is an example as to how an allegation of a police lie can be properly, and relatively quickly, dealt with.
Spenard was testifying in the 2009 trial of a First Nations woman who stabbed her toddler to death. During the cross-examination, Spenard was exposed for misleading the court including testifying that another officer had written a flawed forensic report when in fact he was the author of the report.
Justice John Truscott told the jury. “Staff Sergeant Spenard is the perfect example of a person who clearly lied under oath, and violated his oath to tell the truth, and he even agreed to this. That conclusion is so clear and convincing, and so serious, that I suggest you should consider his evidence to be completely tainted, and without any value whatsoever.”
Four months after the judge’s comments, the prosecutor’s office formally complained and asked the Vancouver Police to investigate Spenard’s conduct on the stand. He was charged and later pleaded guilty to perjury. He received a nine-month conditional sentence meaning no jail time. He was also forced to leave the RCMP.
Mark Berry, a former prosecutor whose 2006 case against a 649-marijuana plant grow-op in Surrey, B.C., fell apart after a witness, an RCMP officer, misled the court. He (now a defence lawyer) said that police forces should pay attention when judges make negative findings on officer credibility. Otherwise, the police departments risk dooming themselves to repeat the same mistakes in the future.
Toronto cop Scott Aikman, who has several commendations from his force, gave false testimony in court in two different trials.
In the fraudulent credit card case, he and another officer stopped a van after it allegedly ran a stop sign. The traffic stop turned into a search under the Liquor License Act after Aikman allegedly detected evidence of alcohol in the van. The search turned up a white plastic bag full of fraudulent credit cards.
The judge did not accept Aikman’s evidence that there was any alcohol in the van, and said that Aikman’s claims were after-the-fact efforts to justify a vehicle search that he should not have otherwise made.
The lynchpin of Aikman’s evidence was a Gatorade bottle that one of the passengers (according to Aikman) admitted contained vodka. The bottle was empty when it was finally submitted into evidence. Aikman explained that oversight when he testified that it must have spilled while he was searching the van. It also was not bagged as evidence right away, nor was the bottle tested until a year after the arrest; and only after repeated requests by a defence lawyer. At the time of the test, it was too late. The alleged liquid residue was no longer testable.
Justice Miriam Bloomenfeld said;
“The bottle’s “contents suspiciously and too conveniently disappeared. Aikman either fabricated or concealed evidence in order to justify the search after the fact.” unquote
This rogue cop’s disregard for the accused’s Charter rights demonstrates how the actions of one bad cop can denigrate the integrity of a prosecution.
Justice Bloomenfeld added. “It is precisely the type of state conduct from which the court must dissociate itself if the administration of justice is not to be brought into disrepute.”
When asked about the two cases where judges found he misled the court, Aikman told the Toronto Star he was not allowed to talk to the media. Though he did not discuss either case in detail, he said, “It’s very unfair that one side is being reported,” referring to the judge’s comments on his testimony. Aikman also said his force would have investigated his conduct had he done anything wrong. Well we all know that wasn’t going to happen. I am not even sure that the police force even knew about this cop’s attempt at conducting an illegal search and then lying about it in court. 
“The fact that there can be multiple findings about an officer reinforces the need for a formal oversight process,” said lawyer Graham Zoppi, who represented one of the accused in the data theft case.
Toronto Police Board Chair Mukherjee has a proposed fix. It is as follows:
There must be a formal mechanism through which the prosecutor’s office notifies the force and the police board whenever negative findings are made about an officer’s credibility.
Ontario’s Police Services Act, which Mukherjee has said is “silent” on this issue, should spell out whether a judge’s finding that a police witness lied in court constitutes professional misconduct. Police chiefs, who oversee internal discipline under the Police Services Act, need to think about their responsibility in responding to judges’ concerns.
While officer discipline is controlled by the chief, as spelled out in the provincial Police Services Act, Mukherjee is seeking legal advice on whether there is a punishment the police board, on its own, can levy to deter lying under oath: Blocking promotions of officers caught doing it.
Frustration with police dishonesty occurred in a Niagara Falls Region courtroom last August, when a judge made a controversial ruling in an attempt to get police brass to act.
The case stemmed from one of the largest grow-op busts in Ontario’s history. In May 2008, Niagara officers raided a series of buildings, including a greenhouse and former church. They seized thousands of plants and arrested eight people in what was described as the takedown of a $16-million operation.
The original tip came from a Hamilton detective, who had noticed a suspicious house in the town of Lincoln while visiting his family over Christmas.
Justice Peter Hambly said in his ruling;
“Niagara detective, James Malloy, and other officers tried to hide the source of their information and made inaccurate and misleading notes  by claiming the information came from an anonymous source. Malloy lied under oath and stated that he would have continued to lie under oath in court if he had not been caught.” unquote
The officers did not follow their obligation to share all the information they found in their investigation to the prosecutor. The judge said;
“Instead, they censored and redacted the information on their own.”
Once aware of the officers’ cover-up, Niagara’s senior officers were indifferent to the misconduct. Justice Hambly was deeply concerned about the indifference of the cop’s superiors when he said;
“Senior officers have taken no action. The chief of police (Wendy Southall), who now knows what has taken place, has taken no action. It seems highly likely that what has happened here will continue to happen unless the court refuses to hear the case.” unquote
Hambly, frustrated with the police force’s apathy, stayed charges against two of the accused, saying the decision was worth the “price” to maintain the integrity of the justice system.
The day after, Niagara Regional Police Service requested an outside police force to probe the officers’ conduct. The London Police Service’s investigation has been suspended because the prosecutor has appealed Justice Hambly’s decision. I don’t know if the officers have been disciplined.
The Canadian Association of Chiefs of Police says the justice system should report police officers who are found by judges to have lied, misled the court or fabricated evidence. Association spokesperson Timothy Smith said;

“If a judge perceives that an officer has not fulfilled his oath of honesty, a judge should report it to a police service. The national association would naturally support mechanisms that would ensure this happens.”

The comments come after the coast-to-coast Toronto Star investigation had published that more than 120 police officers have been accused by judges of courtroom deception since 2005. Many of the officers have gone unpunished.

The national chief’s spokesperson said the Toronto Star’s series caught the attention of the entire law enforcement community and the public we serve. He also said;

“The issue raised by the Star runs absolutely counter to why we in policing choose to make a career out of this profession. While we do not feel that this issue is at all prevalent, we recognize that even a single instance can damage the reputation of policing overall.” unquote

Meanwhile, the Ontario Association of Chiefs of Police, headed by Waterloo Region Chief Matt Torigian, said that if the provincial government in Ontario was to consider requiring prosecutors report such conduct to police forces, the Association would participate in those discussions. He made that statement before the attorney general of Ontario made his statement.

British Columbia seems to be the only province with a formal reporting system in place. If a judge criticizes the truthfulness of a police witness’ evidence or testimony, the prosecutor should report it to a senior crown attorney. The prosecutor should also recommend to the police force that it investigate alleged misconduct.

The chair of the civilian oversight Toronto Police Services Board, Alok Mukherjee, told the Toronto Star that he is troubled by this “serious issue” and wants something done to stop the lies from eroding the public’s trust in his police force.

There must be a formal mechanism through which the prosecutor’s office notifies the force and the police board whenever negative findings are made about an officer’s credibility.”

Elaine Flis, a spokesperson for Ontario’s Attorney General John Gerretsen, previously said that there is no plan to make it a formal policy. But Flis said; “Where a judge raises perjury in relation to a witness, the trial Crown will refer the matter to his or her superiors.” Flis added that it is important that when prosecutors hear something they suspect to be perjury they pass it on to the police force for investigation.

Toronto defence lawyer Reid Rusonik, as well as other sources in the justice system and many Star readers, say it is an easy, sensible fix. Rusonik said in part;

“The Star’s investigation has only uncovered the tip of the iceberg of the problem. It shouldn’t fall on (news) reporters to sit in every courtroom every day and then make complaints when they hear a judge make an oral finding of dishonest police testimony. It must be incumbent on the Crowns (prosecutors) to report every such finding to an independent investigator. The Crowns know full well how to get perjury prosecuted. You wouldn’t believe how quickly some of them will charge a civilian witness caught lying.” unquote

Meanwhile, at the Toronto Police Service, where spokesman Mark Pugash has been dismissive of the Toronto Star series and has said the articles ‘cannot be taken seriously,” a force member wrote on Twitter yesterday: “Thank-you for such an in-depth and well balanced, two sided series. Looking forward to the rest.”
The judges are equally concerned. One of them said;

“Police will end up lying on the witness stand. That's just a reality. We know this happens. We talk about it all the time.” unquote

In closing

There are some who will say that even though bad cops lie in court, it is wrong to release criminals for this reason. But to those of you who feel that way, I put this scenario to you.

You are driving home and your car skids on ice into a parked police vehicle and the officer inside is slightly injured as a result of his vehicle being rear-ended by your car. Soon another police vehicle shows up and the investigating officer tells you that you are under arrest for impaired driving. Now you know you aren’t impaired because you don’t drink alcoholic beverages and you further explain to the officer that you are groggy because your head slammed into the steering wheel. He takes you to the station and instructs you to blow into the breathalyzer. You refuse because you suffer from shortness of breath because of medical problems with your lungs. You suggest that he have a blood test given to you. He refuses and charges you with refusing to take the breathalyzer test. He testifies in court that he smelled liquor on your breath and says nothing about why you refused to blow into the breathalyzer and later he tells the court that he never heard you even complain about your inability to blow into the machine or your offer to submit to a blood test. The trial judge believes the testimony of the police officer over your testimony and rather than give you the benefit of reasonable doubt, the judge convicts you and sentences you to six months in jail and further, he suspends your driving licence for one year. As a direct result of these two sentences, you lose your job, can no longer pay your mortgage and you and your family are now homeless and living on welfare until you can get another job.

This all happened to you because although you were innocent of any wrongdoing, the false testimony of a rogue cop is what did you in. Now you later learn that elsewhere, a criminal walked free because another judge heard the testimony of another cop who also gave false testimony and the judge concluded that to convict even a criminal he knew really committed the crime would be wrong if it was done on the evidence of a cop who lied in court when giving his testimony. 

You would then ask yourself, “Was that judge right in dismissing the charge against the criminal because the police officer who arrested him lied in court and the judge realized that to accept that police officer’s word when the judge knew the officer was lying, would bring disrepute to justice?” Remembering how you were convicted when you were innocent, and convicted on the false testimony of a rogue cop, you are now willing to except the premise that it is better to release ten guilty men than imprison one innocent man.

Justice is often portrayed as a statute holding a balancing scale in her hand. But when I see such statutes, I invariably think of the pictures of the Roman soldier jabbing his spear into the chest of Jesus to make sure that he was dead. The cops who give false testimony in court are no different. I see them as soldiers jabbing their spears into the chest of the statute of justice for they too want to make sure that it is also dead.  

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