By Dr. MUNYONZWE HAMALENGWA
The cell-phone camera, videotape and other gadgets catching police officers engaging in misconduct have the potential of liberating all of us. This article discusses whence we have come in relation to police testimony and believability in criminal courts.
It seems like yesterday when a judge would look you in the eye and ask: “Counsel, are you asking me to believe that this police officer planted or manufactured evidence or beat up on or against your client?”
“Yes,” I would reply.
“What motive would this officer have in doing that?” the judge would further inquire.
“To secure a conviction,” I would say.
I would want to add the following: “And possibly to secure a promotion in the long run.”
You have to bite your tongue.
“So you are saying I must believe the police officer lied and your client told the truth?” the judge would ask.
“Yes your Honour, you have summed it up beautifully,” I would reply. “The evidence points to the conclusion.”
“I can’t do that,” the judge, visibly angry, would reply with disdain and contempt.
Your client would then go down even when you believed that he/she was innocent. Anger would tug at your heart strings.
These days, all you need is a cell phone camera, videotape or voice recording to catch police misconduct. A lot of cases have been won using modern technology, and the police and judges are not happy about it.
The days of judicial misbelief in allegations of police misconduct have been disappearing quickly. They started slightly before the emergence of new gadgets. A judge once looked in the eye of Katrina Moore, a police officer in Ottawa, after the trial of former Ottawa Senators hockey player Radek Bonk for impaired driving and declared: “Evidence against the accused in this case was manufactured.”
According to the March 19, 1999 edition of the Globe and Mail, Judge Peter Wright continued: “No one should have to come to court and face charges based on manufactured evidence.”
The last few years have witnessed a proliferation of discoveries of and commentaries on police misconduct. Police misconduct is no longer an “alleged” aberration. Police misconduct is the norm.
A notorious police officer, Robert Coon, was found by a police tribunal to have committed misconduct, after evading such a finding for decades. After securing drugs from a drug dealer, Coon did not book the drugs. Coon testified that he flushed the drugs down the toilet.
I would love to have cross-examined Coon on his story of flushing drugs down a toilet:
“Officer Coon, did they train you in police academy to destroy evidence? How many times have you destroyed evidence, particularly, how many times have you not booked-in drugs that you seized? How many officers do the same? How many times have you not booked in $10,000, $20,000 from seizures? I suggest to you, Officer Coon, that you did not flush those drugs in the toilet. You kept them either for your own use, to plant on some innocent person, or for sale so that you could buy that cottage. Isn’t that so, officer?”
These questions are not entirely unfounded. Coon, along with fellow officers Jamie Lynch, Dennis Mercer and Paul Cargill, were charged for planting drugs on a Black man named Jasper Brown. Lynch and Mercer testified that Coon directed them to plant the drugs on Brown. They pleaded guilty. Coon and Cargill were acquitted by an all-White jury.
Not only have police lied or planted evidence, some of them have behaved like common criminals by engaging in breaking and entering, home invasions, thefts, sexual assaults, perjury and so on.
For example, two police officers invaded a home in Peel in search of $40,000 to steal. The officers tied up the occupant of the house and pepper-sprayed her. One of the officers justified the invasion by saying that he needed the money in order to provide for his destitute father. Instead of earning it, he invaded a home to steal it.
During the investigation of Guy Paul Morin, an investigating officer was walking around with un-booked drugs. He testified that officers have access to drugs which they can easily walk around with. The Kaufman Commission concluded that police misconduct in the Guy Paul Morin case was systemic. This is now no longer debatable.
Even conservative journalist George Jonas acknowledged in an article in the October 16, 1995 edition of the Toronto Sun that police officers can be dangerously lawless.
“An ordinary police officer has immense powers,” he said. “A cop on the beat can do you more damage than a Supreme Court Judge, and his or her powers are surrounded with few safeguards. Unlike a Judge, a cop can actually shoot you or break your bones. A Judge would find it difficult to frame you. For a cop, it would be a breeze.”
I can go on and on to give you examples of police misconduct. Police lying, or perjury, as in police planting of evidence or withholding of disclosure; not only are the primary causes of serious miscarriages of justice, but have the tendency to bring the administration of justice into disrepute.
It is an unacceptable abuse of power if those entrusted with the protection of and service to the public use their positions of authority to lie, steal, plant or withhold evidence.
Guess what, the majority of victims of police misconduct are visible minorities and poor Whites. You are a sitting duck for this misconduct.
Dr. Munyonzwe Hamalengwa is the author of The Politics of Judicial Diversity and Transformation. He is a criminal lawyer and civil rights litigator, particularly on class action lawsuits against police misconduct.