PROBE STALLS DRUG CASES

OPP Investigation Of Durham Police Prompts Delays In Courts

Part two in a two-part series on the drug unit investigation

DURHAM -- The ongoing investigation into allegations against Durham
Region drug unit cops has halted the progress of a number of
high-profile cases through the courts.

Although no charges have been dismissed while the courts await the
outcome of an Ontario Provincial Police investigation begun in
February of 2003, the delays are unsettling, said Alex Sosna, who
represents the Federal Crown attorney in drug cases in Durham Region.

"Obviously, it's a concern to the court and a concern to the Crown
when there's a delay of this sort," Mr. Sosna said.

"The last information we had was that perhaps whatever investigation
is ongoing may be completed in the fall," he said.

"That's the information I have to work with and that information I am
conveying to the courts."

Mr. Sosna estimated there are five federal cases involving marijuana
grow operations before the Superior Court and another four cases at
the Ontario Court level that have essentially been left in limbo as
the result of the OPP probe.

The amount of time each charge has been on hold differs from case to
case, he said.

"It varies, because each (case) has its own history," he
said.

"But some of the cases are well over two years old."

Oshawa criminal lawyer Bernie O'Brien, who is representing one of the
Durham Regional Police officers who are the subjects of the OPP probe,
said the ongoing investigation and the pall it casts over the drug
enforcement unit (DEU) is providing defence lawyers with opportunities
to file motions aimed at bringing into question the integrity of
arresting officers in drug cases.

"There's a lot of cases that have been put on the back burner until
this is resolved," Mr. O'Brien said.

One of the tactics being employed is applying for so-called O'Connor
motions, in which a defence lawyer will seek disclosure of third-party
records in an effort to uncover information about an arresting
officer. Mr. Sosna said that while a number of such requests have been
made in the year and a half since the OPP investigation began, none
have been ruled upon, largely because the pertinent information - the
results of the OPP probe - haven't yet been released.

Still, the result is a delay in the progress of criminal charges
through the courts, Mr. O'Brien said.

"It's manifesting itself in requests for police records included in
the OPP probe and personal records of individual officers," he said.

"These demands are adding an inordinate amount of time to these cases,
and raising the possibility they'll be tossed out.

"It's effective, and it's being employed in a very sizeable number of
cases."

While the issue of delays invariably invokes the notion of a wave of
Askov motions - a reference to a Supreme Court of Canada ruling that
paved the way for dismissal of charges in the event a defendant is
deprived of his or her constitutional right to speedy justice - that's
not likely to happen, Mr. Sosna argues.

"We take the position that this is not an Askov issue, because it is
not an administrative delay," he said. "The Crown's prepared to
prosecute these cases with or without these records."

Rather, the pursuance of O'Connor motions is a defence ploy that could
eventually work in a defendant's favour.

"What the defence is seeking is evidence gathered by the OPP that may
(call into question) the credibility of officers who may be witnesses
in the prosecution of a case," Mr. Sosna said.

"From a defence perspective they've got nothing to lose. And
everything to gain."

The long wait for results of the OPP investigation is troubling to the
Durham Regional Police Association, the union that represents
rank-and-file cops in the region. Association vice-president Tom Bell
said the probe - and the lack of information released since it began
in February of 2003 - has cast a shadow over the activities of the
DEU.

Meanwhile, approximately 30 officers have been informed they may be
asked to provide witness statements in the investigation of
non-criminal charges relating to an in-house probe by Durham Regional
Police.

"They've put the reputation of our members and this police service on
hold," Mr. Bell said.

"If there's something there, let's have it," he said. "If there isn't
anything, say there isn't."

Durham Regional Police Chief Kevin McAlpine said the investigation has
to be allowed to run its course.

"Certainly any time justice is delayed, it raises concerns," he said.

"But it's not really in my control."

OPP investigators are not commenting on the progress of the probe,
except to say it is ongoing.

Exactly what the OPP is looking into isn't known. Even officers who
are being investigated don't know the nature of the allegations, Mr.
O'Brien said.

The allegations were made by a former member of the DEU who is still a
Durham cop, according to several sources.