By Dr. MUNYONZWE HAMALENGWA, Barrister and Solicitor
There has been so much euphoria in the last while because a police officer has been charged in the shooting death of Sammy Yatim. Caution, however, ought to be exercised when it comes to criminal charges involving police officers.
The conviction rate against police officers who have killed civilians, especially minority civilian victims including Blacks, is next to nil. This contribution is an elucidation of this issue with concrete examples of the failure of justice.
The hung-jury verdict many years ago in the manslaughter trial of Constable Rick Shank for killing Hugh Dawson, a Black man, was considered an important partial victory for justice in the administration and prosecution of criminal justice in Ontario. No constable had ever been convicted for killing a Black person in Ontario’s history. Even lesser charges of careless use of a firearm have ended in acquittals.
One police officer (Sokolowski) who was convicted on a minor charge involving a Black person was given a conditional discharge – meaning the offence for all practical purposes never took place.
A constable was convicted in the shooting of Dudley George, a native activist in Northern Ontario. The sentence was conditional, meaning: “Have a nice day. Don’t do it again.”
The mistrial result in the Shank case meant that some jurors thought, “Hey, we smell a rat here.” Something wrong was done by Shank. Mind you, this had never happened before. It was the closest a jury had ever come to convicting a police officer for shooting a Black person. It must be hailed as a partial victory for justice. At that time it was thought that the police could no longer rest on their laurels expecting acquittals all the time. However, some members of the jury felt the status quo must continue. Shank knows he could have gone down. It was also a partial victory for him.
When I was an articling student in the late eighties for Clayton Ruby, a nationally prominent Toronto criminal lawyer, I asked him why police officers always got off scot-free for shooting Blacks. His answers:
- Police officers testify all the time and they use their notes and in the process, they perfect their craft; they become believable.
- Police officers lie a lot; their lies are convincing.
- Most judges are predominately White, former crown attorneys who worked with police. They continue to give the police the benefit of the doubt. They are, after all, from the same stock and ideological base.
- Most jurors, who are usually all White, believe police evidence, which is usually given professionally and without apparent self-interest. The jurors regard police officers as one of their own.
- Media coverage is always pro-police and the jury and society are already tainted in favour of the police.
- Police have bottomless pockets and as such they can hire the best pro-cop defence lawyers money can buy.
- The law is already predisposed toward the police. They are allowed to use force if they believe they or someone is in danger. It is difficult to second-guess the police’s exercise of discretion given the legal presumptions.
I already knew all those reasons but I wanted confirmation from a prominent White lawyer who happened to be my boss at the time. At that time, we were assisting Sophia Cook, a Black woman who had just been shot by a White police officer. The officer was acquitted.
This is the context in which I am putting forward the thesis that the mistrial/hung-jury in the Shank case was a partial victory for justice. And further, that is why I am urging caution in the celebration of the charges facing the police officer who killed Yatim.
Now reverse the tables and assume a Black man, say, a Jamaican, won a mistrial for killing a White police officer. What would the media, the police, the judges and the talking heads be calling the jurors?
When the jurors returned a verdict of manslaughter instead of first-degree murder on Alexander, a Black Jamaican in the killing of a civilian, Judge Keenan of the then Superior Court of Justice called the jurors “naive and gullible”. It was not even a policeman who had been killed. Imagine if it had been a policeman.
Judge Doherty of the Ontario Court of Appeal has stated that jurors are not sophisticated enough and they don’t understand a judge’s instructions. When O.J. Simpson was acquitted, the machinery of the powers that be stated that the predominately Black jury was hoodwinked by the “race card” played by the defence. Even Black prosecutor Chris Darden succumbed to the accusation.
When the police are acquitted even when a different result could as well have ensued, the powers that be never say anything negative about the jurors. They are praised. Remember when White jurors acquitted the officers who beat up Rodney King in Los Angeles, they were heralded despite the video evidence that showed the police’s criminality. The deck is stacked. No one says that the defence played the “police card”.
When Clinton Gayle, a Black man, stated that the all-White jury that convicted him for killing a White police officer in Toronto was “racist”, he was derided. Self-defence should have held in that case. But no, all Black persons who kill police officers get convicted. They also usually get convicted for assaulting police and resisting arrest and a host of other alleged offences against the police. Shank is a half reversal of the all-time trend.
The dress rehearsal in the Yatim case has been completed. Each side knows the strengths and weaknesses of the other. The stakes are high. Yatim was mentally ill. The police have claimed they feared for their lives and didn’t know of his mental condition. They assumed he was fully functioning mentally. This trial will be the most important, nerve wrecking and interesting trial involving the White police killing of a mentally ill minority in Ontario of this and any other century. Mark it.
Judicial diversity plays a part in the calculus of justice in Ontario. The judge who convicted the police officer who killed Dudley George was Black. The prosecutor was a special prosecutor. But this was not a jury trial.
Are police officers only threatened with conviction when the constellation of forces arrayed against them is not entirely White? Will a police officer ever want a trial without jury, thus opening the prospect of conviction? Hardly.
Dr. Munyonzwe Hamalengwa practises criminal law in Toronto and is the lead counsel in several class action lawsuits against police for racial profiling and carding. Email: firstname.lastname@example.org