Law Times

PAGE 10 FOCUS December 13, 2010 • Law Times Ottawa cops under fire BY GLENN KAUTH Law Times of all of the recent cases so far: Webber Schroeder Goldstein Abergel. "What's happened is there's been a heightened sensitivity," says Matthew Webber, who represented Stacy Bonds, an Ottawa woman accused of public intoxication. She was at the centre of a now-infamous video showing her kneed her in the back, pinned to the ground, and stripped of her shirt and bra in the cellblock. Those actions drew harsh ju- dicial criticism, resulting in a stay of the case against her. But that's not the only matter A prompting harsh rebukes of Ottawa po- lice by judges. Video evidence led to the same result in the case of Terry Delay. Cameras captured police dragging him into a cell and kicking him. His lawyer, Leo Russomanno, also represented Syd- ney Cranham, whom police sent into a river to retrieve a needle as part of a drug investigation. Cops had happened upon Cranham and a co-accused, Pat- rick Tobin, in a park. They say the men then threw needles into the Rideau Riv- er, prompting them to order Cranham, in the interests of officer safety, to wade into the water to get them back, Rus- somanno tells Law Times. In a fourth case, a third lawyer at Web- ber's firm, Michael Spratt, handled pro- ceedings against Robert Crevier. Accord- ing to the Ottawa Citizen, a police officer detained him arbitrarily when, after stop- ping him on a hunch, he took him into a cruiser and searched his belongings with- out advising him of why he was arresting s a legal storm brews over police actions in Ottawa, it turns out one firm has been at the centre him or of his rights to a lawyer. The judge's concerns led to exclusion of the evidence and acquittal on charges of attempted break and enter, possession of break-in tools, and breach of proba- tion earlier this month. Webber used evidence from the Delay video in attempts to prove discreditable conduct against Special Const. Melanie Morris, the officer involved in both that case and the Bonds matter. Once the media be- came aware of Justice Richard Lajoie's harsh criticism of police actions in his ruling in the Bonds case, the Citizen sought release of the video. Further requests resulted in the release of footage in the Delay matter. The flurry of cases have prompted a public outcry that has police vow- ing to take action. "One issue that we've quickly identified is the train- ing piece," says Gilles Larochelle, acting Ottawa police chief. "We're going to identify special constables." Currently, the force has 64 special constables who work mainly in cells and prisoner transport. "We took the opportunity to re- view how we do business — our pol- icies and procedures," says Larochelle, noting the force will submit its findings to the local police services board. A likely priority is on training in the use of force for special constables. "The community expects us to action it, to do something about it," Larochelle says. In the Cranham case, police actions in sending the accused into the water left the judge "deeply concerned," Rus- somanno says. Still, while the court was critical, Russomanno wasn't surprised at what happened. "As a defence lawyer, it's sad to say but it's not the first time I've not an issue of incidents being on the rise. "From our perspective, it is more a question of media interest because we know there are lots of issues of police brutality that come across our desk on a regular basis," she says. She adds that the issue isn't specific to Ottawa and calls the controversy a "wake-up call for all police forces" to improve training for officers on people's rights under the Charter of Rights and Freedoms. But beyond that, she emphasizes the problems of police culture and leadership, in- cluding issues with chiefs who have referred to the Charter as a barrier to law enforcement. "It's important that the message be that good policing is lawful policing," she says. In addition, the cases underline No defence lawyer would call the Ottawa cases isolated incidents, says Matthew Webber. seen an attitude of indifference towards Charter rights. It seems to me that there are quite a few cases of police officers who are not well aware of the scope of their authority. They don't seem to be sensitive to breathing life into the rights of the people they're investigating." Of course, a key question is why all of these cases are arising at the same time. But despite concerns surfacing in Toronto over police actions caught on video dur- ing the G20 summits just as the Ottawa controversy was swirling, Nathalie Des Rosiers, general counsel with the Cana- dian Civil Liberties Association, says it's Time to get political, lawyer says Continued from page 9 choice but to impose the minimum given that Schwartz "has not established flagrant impropriety or abuse of process by the Crown in its decision to give notice, nor of cruel and unusual punishment in the result." So there doesn't appear to be much lawyers can do in such cases. Of course, the same reasoning applies in other areas where the gov- ernment has cracked down, including its bid to restrict conditional sentences. In a case this year, R. v. Bankay, the Ontario Court of Appeal varied the sentence handed down by Justice June Maresca of the Ontario Court of Justice after a woman pleaded guilty to aggravated assault. Maresca, the appeal court ruled, imposed "what amounted to a disguised conditional sentence" by granting a pro- bation order with a term of six months of house arrest. "It was an error of law to impose a sentence that circumvented Parliament's decision to exclude conditional sentences for this offence," the appeal court ruled. As a result, people like Konge say they may have to take a longer view to get the types of dispositions they believe are just. "I think the bottom line is if we want to see changes to manda- tory minimum legislation, we all need to become members of a political party that will make that happen." Changing the political climate is something Mauer hopes will happen sooner rather than later. "It is long past time to restore a better balance of the use of discretion within the criminal justice system as a means of producing more constructive sentencing outcomes," he wrote in a submission to the parliamentary com- mittee that noted the problems he sees with the U.S. approach to criminal justice. "I hope that the experience in recent decades in the United States will prove instructive." LT the role of video evidence in acting as a check on police conduct. While that issue continues to be a matter of debate in the latest Toronto G20 brouhaha, Russomanno notes it was key in countering police claims that Bonds was resisting them. "As a de- fence lawyer, it has me wondering what we would do without video- tape," he says, adding there aren't al- ways cameras watching what police do in a public place such as a park. "What if Terry Delay didn't have a videotape?" In response, Russomanno would like to see police install cameras in their squad cars to ensure increased monitor- ing of their actions. But that's a tricky issue for Des Rosiers, who notes there have also been proposals to have police carry cameras on their hats. The prob- lem, she says, is whether officers could turn the cameras on or off depending on what suits them. "If it is always on, there certainly are many interactions that may be a breach of privacy. If it's not always on . . . it is used as a protec- tion device for police." Larochelle, too, cites the need for changes in technology available in cell- blocks to ensure the visual feed matches the audio. That way, police will have more avenues for explaining their ac- tions. "It's not only our side; it's both sides," he says, noting upgrading the cameras has now become an urgent pri- ority for the force. Webber, meanwhile, expects the issue will continue to burn as there likely are more cases in the pipeline that will now come to light. "I would venture that there's not a criminal defence lawyer in the country that would accept that these are isolated incidents," he says. LT A daily blog of FEEDS LEGAL FEEDS LEGAL LegalFeeds_Banner.indd 1 Canadian Legal News Coming soon to www.lawtimesnews.com 11/16/10 10:51:27 AM canadianlaw yermag.com

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• Focus On Criminal Law