POLICE DRUG SQUAD CASE

Legal Technicalities And Political Failures

When the drug squad corruption case came crashing to the ground last
month I was not at all surprised.

I distinctly remember when the scandal broke in 1999. I was
representing a married couple who had been charged with producing
marijuana and they claimed that $4,000 went missing after some members
of this impugned drug squad had raided their home.

I advised the federal Crown about the missing cash and indicated that
I intended to bring an application to obtain the police disciplinary
records.

Without much ado and with little explanation, the Crown then stayed
the charges against my clients but no formal investigation was ever
conducted into the allegations we had raised. At the time, it seemed
that these allegations of corruption were not being taken very
seriously, so it comes as no surprise that nine years later we
discover that the government has dropped the ball in prosecuting this
case.

Although I do not have much sympathy for these officers, it would be
categorically wrong to claim that they "got off on a technicality."
Their charges were stayed because of an unreasonable delay largely
caused by the failure of the Crown to properly discharge its
constitutional obligation to make full and complete disclosure to the
accused. Disclosure was provided by way of an instalment plan with
125,000 pages of documents disclosed prior to the preliminary hearing
being set, another 80,000 pages while awaiting the preliminary hearing
and another 110,000 pages upon completion of the prelim.

It took the Crown close to four years just to show its
hand.

Reasonable people may disagree about the value of some of our legal
rights, but the right to full disclosure is a no-brainer. Without full
disclosure of the evidence, the accused can only bumble around in the
dark looking for an unknown defence to a mysterious allegation.
Defending a criminal case should never be an exercise in
improvisation. Good lawyering is about preparation and even a
sharp-witted lawyer cannot do justice to a case without meticulously
combing through the written record of everything that led the police
to make criminal accusations against a client.

In granting a stay of proceedings in this case, Justice Ian Nordheimer
set the length of the delay at 56 months. This "glacial pace" is
astonishing considering that the officers were not charged with crimes
of great forensic complexity. We are talking about alleged acts of
thievery, assault and extortion. The fact that there are multiple
defendants who are police officers undoubtedly increases the
seriousness of the crimes but it should not necessarily increase the
complexity of bringing a fairly simple accusation to trial.

Somehow the process was derailed and some blame the "blue wall" of
non-cooperation of fellow officers for slowing down the investigation
while others point the finger at the Crown for indifference, or even
sabotage. I have no desire to enter the fray and offer up another
speculative opinion but a few simple observations can be made.

First, it must not be forgotten that our legal system has a dismal
track record when it comes to investigating and prosecuting
allegations of police illegality and misconduct. The success rate for
prosecuting or suing police officers in Canada is about as high as the
success rate in prosecuting drug cartel criminals in Colombia.

The police complaints process is even worse - it is full of
stonewalls, double-talk, endless delegation, delay and indecision. Few
people seem to care that the absence of meaningful review and
accountability is like handing over a blank cheque to officers
inclined to misconduct.

Our timid indifference when it comes to punishing cops allegedly gone
bad may have its roots in the adage, "don't bite the hand that feeds
you," modified in this context to be recast as "don't slap the wrist
of those that shield you."

Perhaps there is an innocent explanation for the drug squad
prosecution fiasco. Perhaps the accused officers are actually
innocent. But in light of our dismal track record, the mere fact that
this case ended in a no-decision is a criminal justice disaster
because it suggests in the minds of many that the justice system plays
favourites with the police being indulged like mischievous children
who can do no wrong in the eyes of the parents. As with every other
failed prosecution of the police, the collapse of this prosecution can
only serve to further erode the perceived legitimacy of the system.

Last week, the attorney general launched an appeal as if to show a
renewed zeal to prosecute these officers, but the gesture comes too
little too late. Whether or not the appeal has any merit, it will not
address the bigger question of why we continuously fail in our efforts
to bring allegedly bad cops to justice.

The Court of Appeal can only decide whether or not Justice Nordheimer
was wrong in concluding that 56 months of delay was unreasonable and
this seems to be a rather trivial debate when compared with the bigger
question. But while the Crown tries to stretch this case out even
longer by playing with numbers on appeal, it can fool people into
thinking that this case is just about a technical legal error and not
about political failure.

Alan Young is a professor at Osgoode Hall Law School.