Was the decision just?

In the year 2002, a series of particularly brutal home invasions took place in Mississauga, Ontario over a period of several months. A gang of thugs, wearing masks and armed with guns and knives, forced their way into homes in the early hours of the morning. They used plastic tie wraps to bind the residents by their wrists and ankles.

The gang inflicted dreadful abuses upon their victims, including: confining an elderly woman and telling her she would be shot if something went wrong, using a knife to carve a dollar sign into a man's back and trying to cut off his finger, grabbing an eight-year-old girl, pushing her down, telling her to say goodbye to her parents and telling the child's parents that they would take her unless all their money was handed over and sexually assaulting a woman by placing a gun in her mouth while digitally penetrating her vagina, and then placing the gun in her vagina.
It is hard to find any sympathy for those committing such horrific crimes. And it is easy to understand why police officers and prosecutors felt righteous indignation towards those they believed to be guilty.

Quang Hoang Tran, one of the gang members, surrendered to the police in Hamilton in 2003. He was then turned over to police officers of the Peel Regional Police.
The Peel Regional Police provides police services for Peel Region in Ontario, Canada. As of 2005, it is the second largest municipal police service in Ontario after the Toronto Police Service and third largest municipal force in Canada (behind Toronto and Montreal) with 1,700 uniformed members and close to 600 support staff. The Peel Regional Police serve the over 1,200,000 citizens of Mississauga and Brampton, two cities located immediately west of Toronto along with several smaller communities.

I don’t know what Tran’s real motive was for surrendering but perhaps he suspected that the Peel Regional police believed that he was one of the criminals who committed these horrendous crimes and Tran figured he might get a better deal with respect to his sentencing if he gave himself up.

While Tran was being transported from Hamilton to Brampton, two Peel Regional police officers tried to get an oral statement from Tran, but he refused to comply with their demand and relied on his right to silence which is a right given to all suspects in Canada and the United States and other westernized countries. The police officer’s response to him was that they would get a statement from him ‘the hard way.’

I can only interpret the term, ‘the hard way’ to mean police brutality. That form of coercion has long been abandoned by police forces in Canada and elsewhere for many decades. I can remember however when suspects in Toronto were brutally tortured by broom handles being inserted in their rectums, tied to bicycles and then pushed down a flight of stairs and being thrown into the lake while their hands were handcuffed behind their backs. Nowadays, any police officer in Canada who commits that kind of abuse on a suspect can be charged with torture which is contrary to the Criminal Code of Canada and can be sent to prison for a period of fourteen years.

In 1966, a black man was tortured by police officers in New York City. The arresting officers beat the man with their fists, nightsticks, and hand-held police radios on the ride to the station. On arriving at the station house, he was strip-searched and put in a holding cell. The beating continued later, culminating with the suspect being sexually assaulted in a bathroom at the 70th Precinct station house in Brooklyn. One of the officers, a police thug called Volpe kicked the suspect in the testicles, then, while the suspect’s hands were cuffed behind his back, he first grabbed onto and squeezed his testicles and then sodomized him with a broken broom stick, causing severe internal damage to his colon and bladder that required several operations to repair. Volpe then walked through the precinct holding the bloody, excrement-stained instrument in his hand, indicating that he had "broke a man down." For this horrendous shocking crime committed against his prisoner, Volpe was convicted and sentenced to prison for 30 years without parole.

One would think that in this century, all that kind of abuse would no longer exist in today’s enlightened world. Not so. There are still police officers in our police forces that are best described as thugs. In this piece, I am going to tell you about two of these thugs in the Peel Regional Police in Ontario.

On arrival at the Peel police station, the two officers shoved about and punched Tran. They then put him in a locked interview room and again demanded a statement. Tran remained silent as per the advice given to him by his lawyer. One officer punched Tran in the ribs and the jaw. Tran bled profusely from the mouth but still he would not talk. In fact, he might have had trouble talking at that time had he wanted to since his jaw had been broken in two places as a direct result of the blow to the jaw by one of the police officers questioning him. As a direct result of his broken jaw, Tran suffers permanent damage to his jaw. He now bites himself when he eats; he still has a sore jaw and loose teeth and suffers from migraine headaches.
The officers tried to conceal their assault. They cleaned up the blood in the interview room. They placed Tran in front of a video camera and attempted (unsuccessfully) to get him to say that he had hit his chin on the table.

Unfortunately, the cover-up went beyond the two police officers. The province’s Special Investigations Unit (SIU) had launched an investigation, but closed the file without charges filed against the two officers on June 6, 2003 and refused to say why, citing confidentiality. That’s what I call pure unadulterated crap.
At trial, Tran's lawyers sought to stay the charges against him on the basis his constitutional rights had been breached by the police. There was little doubt about that claim. He had been beaten specifically to make him surrender his right to silence. The trickier legal question was what followed from the breach of his rights.

The three-judge Court of Appeal panel also had harsh words for the Crown, for appearing to shrug off the incident after a trial judge concluded Tran was severely beaten and rejected the officers’ story about how it was that he ended up beaten and bloodied in a police interview room. Justice Michael Tulloch ruled during a pre-trial motion in 2006 that Constable Will Vander Wier had delivered the blow to Tran’s jaw. After the judge’s decision, the Crown continued on as if nothing that happened to Tran was wrong, inviting the officer to remain seated at the counsel table beside the prosecutors during the rest of the trial. Justice Epstein of the Court of Appeal panel said, “The Crown’s conduct was evocative of an alignment with the police, notwithstanding the abuse. Justices Robert Sharpe and Janet Simmons agreed with Epstein.

The assault of a prisoner by police intent on forcing a confession is illegal and despicable. On the other hand, the victims of the home invasion deserved vindication in the form of a conviction of those who tortured them. At trial the judge held that Tran, while abused, must still be convicted and serve a sentence. However, the judge reduced the sentence to take into account the police misconduct. He was sentenced to 14 months in a correctional institution and three years probation.

Tran appealed. The Court of Appeal faced a difficult issue. If there is no sanction for gross misconduct by police then constitutional rights afforded to suspects are merely words on paper. But to sanction police by staying a prosecution allows a criminal to avoid conviction. That is the dilemma facing the victims of Tran’s assault against them. Was the decision by the Court of Appeal just?

The Court of Appeal, while recognizing a stay for police misconduct must be very rare, overturned the trial judge and ruled the police misconduct so serious as to make a stay necessary. Tran’s conviction was overturned.

The court unanimously stated in its decision, Some might question whether society as a whole is as troubled by Tran's broken jaw as by the harm to the woman who had a gun put in her vagina; however, the court's view is clear. The police conduct, and the lack of sanctions for that conduct, meant any prosecution of Tran would bring the administration of justice into disrepute. The charges were stayed meaning that there would be no longer be a criminal trial for Tran on this matter.

The Ontario Court of Appeal has condemned the “horrendous” conduct of two Peel Regional Police officers who beat a man suspected in a string of Mississauga home invasions, leaving him with a broken jaw and permanent disability. The court said, "It is essential for the court to distance itself from this kind of state misconduct to wit; an unwarranted, grave assault causing bodily harm, delayed medical attention, a cover up that included perjury, a prosecutorial response that affected the perception of trial fairness and no effective response. Not to do so would be to leave the impression that it tacitly approves of it." With respect to the two officers beating Tran to get a confession from him, the court said, “Their conduct was despicable regardless of its motivation.”

The court was also dismayed that and shocked that no disciplinary action has ever been taken against the officers, who tried to cover up the incident and lied about it later in court. I am also shocked but not surprised. It should come to anyone as a surprise that the Special Investigations Unit (SIU doesn’t always arrive at correct decisions however now that the Court of Appeal has expressed its concern, the current SIU Director, Ian Scott, intends to review the evidence" to determine whether the case ought to be reopened.

Now I will go directly to the question as to whether or not the decision of the court that the prosecution of Tran be stayed was a just one.

Notwithstanding that his crime was horrendous and deserving of punishment, if he served the 14 months in jail and also served three years probation, then the decision was academic. A sentence of 28 months would have been more appropriate but the trial judge decided that because of the permanent injury he suffered from as a result of the police beating, his sentence should be cut in two.

I think that he should have served the 28 months in prison because he could still sue the police officers and the Peel Regional Police and if he had, he would have received a substantial award for the suffering he had to endure at their hands. I am convinced in my mind that even if he had filed an appeal against the conviction and sentence because of the outrageous treatment he had been given by the two police officers, it is highly unlikely that he would have been set free while waiting for the decision of the Ontario Court of Appeal.

However, there is another matter that has to be factored into this kind of dilemma. The Tran case needs to be seen as a renunciation of police brutality. In staying Tran’s conviction, the Court is upholding the rights of all Canadians to enjoy their basic civil liberties. The outcome of allowing a clearly guilty man to walk is extremely distasteful, however to have allowed the conviction to stand would have comprised two basic principles of jurisprudence: the right to silence and equal rights of all Canadians and as such, it would make those rights meaningless.

The right to silence is absolute and is based on the understanding that ordinary citizens, placed in the extraordinary situation of being interviewed by the police, can convict themselves by accident, regardless of their actual guilt but should not be convicted on their confessions if they are obtained by undue coercion. A word spoken in panic or desperation can easily be misconstrued, even by police officers, judges and juries with the best of intentions. The justice system is exactly that, a system devised by human beings and staffed by human beings. The court’s function is amongst other things, the protection of suspects from coercion by police.

These protection safeguards are as vital as any of those more glamorous such as the right to free speech, property, privacy inter alia that are enshrined in the constitutions of free nations. It is the rights which are guaranteed the fair enforcement of all our rights. Equality before the law is akin to these rights. If the police are able to assault suspects with impunity, they have placed themselves above the law. It is true that certain allowances must be accorded to officers in the conduct of their duties, being allowed to speed on public roadways being one of the more obvious examples but these allowances are, however, only of a very limited nature. These allowances extend only so far as it is absolutely necessary for police to conduct their duties. Beating suspects who are not even at that time convicted criminals is obviously beyond the pale.

In making their ruling, the Court of Appeals helped send a powerful signal of deterrence to police officers across the province. The paramount fear in this case is not of bad officers abusing their power for personal gain. The officers gained nothing by the beatings inflicted. Given the evidence now available, it seems that the officers in question were morally outraged by the conduct of Tran and his fellow thugs. The description of these home invasions is harrowing, and Tran did worse than he was done by.

It is only too easy to imagine the officers losing their patience with Tran. He was scum and they wanted him behind bars. I don't think there are many Canadians, and I include myself, who don't sympathize with what was probably going through the minds of those officers.

That is because at some primal level that is in all of us, we do believe, or at least feel, in the concept of ‘an eye for an eye.’ Many officers enter the force with a high moral sense of their profession. They see themselves as a thin blue line against violence and fraud. They are solemnly charged with protecting the public against the worst of humanity. There is, however, the finest of lines between moral integrity and moral righteousness, between having a strong sense of right and wrong, and having that moral sense distort the facts before you. The tragedy of this is that, it seems, some good officers behave badly. This is a form of corruption, one far more dangerous than the ordinary corruption for simple personal gain; it is sometimes called ‘corruption by noble causes.’

More harm has been done in human history by good people doing bad things, with the best of motives, than by the merely evil. A zealous officer might not care for his personal well-being or his career. Nailing a scumbag who tormented innocents might be worth the risk. An altruistic morality only compounds this. The officer might begin to see himself, or herself, as a martyr for justice. In his view, he says to himself, “I will suffer, but justice will be done to the wicked.” Such zealotry blinds an officer to performing their duties professionally and objectively.

A police officer blinded in such a way is far more dangerous than any criminal. His uniform, his legal authority and the organization he represents render him far more dangerous, for with his special status he can inflict far more harm than a simple criminal. The Court of Appeal has made it clear that those officers tempted to bend, or break, the law to obtain a conviction, however richly deserved, will fail. Tran's defense attorney explained it perfectly: "You can't break the law to enforce the law."

Many of those who feel outrage at Tran's walk from justice will, unfortunately, direct their anger at the Court of Appeal. It is misplaced. The Court discharged their duties well in a difficult case. It was these two officers who failed in their duty. By mistreating Tran, they surely failed the public and Tran's victims, as if they had not properly followed leads, mislaid evidence or allowed Tran to escape their custody. They were, quite simply, incompetent as police officers. They should have properly investigated the case they were working on and brought Tran to trial based on the results obtained by good police investigation. As it is, a violent criminal had his case stayed and his victims left with the feeling that all was not done right in their name.