Despite a policy that Crowns should report dishonest testimony, it’s unclear whether police who lie on the stand are being held accountable.
Using uncommonly frank language, a Superior Court judge said a Peel police officer “misled” a justice of the peace in order to obtain a search warrant for a marijuana grow-op, then “lied” about his investigation on the stand afterward.
“I cannot accept Officer (Aamer) Merchant’s evidence,” Justice Gordon Lemon wrote in a ruling on April 9, 2015. “He misled the justice of the peace … Officer Merchant lied to the court.”
In response to the investigation, then attorney general John Gerretsen established a policy requiring Crown attorneys to report such decisions to their hierarchy, which can then refer the matter to the relevant police force. After its own investigation, the police force may press Police Services Act charges against deceitful officers, which carry a maximum penalty of dismissal.
The process may be long, but it nevertheless represents a functional mechanism for holding police officers to account for their conduct in trials.
However, the Ministry of the Attorney General will not confirm whether it has conducted a review of a particular ruling, nor whether it has referred the decision to a police force, according to spokesperson Brendan Crawley. That makes it difficult for the public to determine whether a specific officer is being investigated.
The only way to be sure an officer is being held to account is if the force decides to file charges and hold a public hearing — a process that can take months, if not years.
Merchant relayed a message to the Star on Thursday declining to comment for this story. The Public Prosecution Service of Canada, which prosecutes drug cases, couldn’t confirm whether the case had been referred to the Peel Police or whether they employ a referral policy similar to provincial Crowns.
Peel Regional Police were not aware of the judge’s ruling until they were contacted by the Star, Staff Sgt. Dan Richardson wrote in an email.
“Since learning of this decision, Chief (Jennifer) Evans has directed that a review be conducted surrounding these circumstances,” he wrote.
The Peel Regional Police Association did not respond to a request for comment.
Merchant is a drugs-and-gangs officer with 12 years of experience on the force.
In front of Justice Lemon, Merchant testified that he had applied for a warrant about 30 times in his career, which involved preparing a document called an “Information to Obtain” — or ITO — to present to a justice of the peace.
In January 2011, after receiving a tip from a confidential informant, Merchant drew up an ITO to request a search warrant. The warrant was granted and police raided a house in Markham the same day, finding “a quantity” of marijuana plants in the basement, Justice Lemon wrote in his ruling.
Because a tip from an informer isn’t sufficient to grant a search warrant, Merchant was required to gather additional evidence for his ITO.
“Officer Merchant set out in the ITO that he ‘was conducting surveillance’ at the two residences in question. What he did not say was that he simply drove by those two residences,” wrote the judge. “(Merchant) agreed that the word ‘surveillance’ was a ‘strong word’ and not full, frank and fair.”
Merchant also wrote in his ITO that the suspect “has a criminal record for violence, offence weapons, break and enter, drugs, other Criminal Code and other Federal Statutes,” according to the ruling.
During the preliminary inquiry, the judge heard that the document from which Merchant had obtained this criminal information had the words “Caution: this is not a criminal record” and “No convictions” written on the front page.
Merchant told the court that he did not notice these disclaimers until the pre-trial.
“The (criminal) record was a sham,” wrote Lemon. “As I listened to Officer Merchant give his evidence … I found that I simply did not believe what he had to say.”
“The conduct of Officer Merchant is so subversive that (it) requires that the warrant be quashed.”
The marijuana case is still ongoing.
Members of the legal profession who have come across less-than-truthful testimony from officers say the policy for referral is far from transparent. Lawyer Enzo Rondinelli says Crowns assure him the policy is in place, but won’t confirm that it’s been used in a particular case.
“‘Don’t worry, you can trust us’ policies are understandably met with skepticism,” he said.
“A more formal mechanism must be put in place by the Legislature to ensure that a process is fair to the police in meeting such allegations, but also (should) include a reporting requirement detailing the number of complaints and their ultimate outcome. It is the only way you can get full accountability in this area.”