Visibly nervous, papers shaking in their hands, Toronto police officers Jay Shin and Joseph Tremblay testified under oath that they stopped Delroy Mattison’s Chrysler Intrepid on the afternoon of July 18, 2011, because they saw him using a cellphone.
The officers were lying, just not very well.
In Mattison’s trunk that summer day were a stainless steel .357 Smith & Wesson revolver and 31 bullets. Mattison, who had a previous conviction for armed robbery, was on his way to a drug deal. Under the law, these officers needed a reason to stop and detain Mattison. Without one, they would never have found the gun.
The problem is they never seized a cellphone or noted the existence of one in paperwork filled out at the scene. That night, a third officer snapped photos of the impounded Chrysler’s interior, none showing a phone.
“Officers Shin and Tremblay were untruthful about seeing Mr. Mattison using a cellphone,” Justice Nancy Backhouse ruled. She tossed the evidence, saying, “This court must dissociate itself from (this) serious and deliberate state misconduct.” Mattison walked free.
Backhouse was trying to send a message, one being repeated by concerned judges in courtrooms across the country: Police dishonesty makes a mockery of the courts, undermines the public’s trust in the justice system and must be condemned. There is little evidence anyone is listening.
A nationwide Toronto Star investigation shows judges are frequently finding that police officers lie under oath. The dishonesty comes with little consequence to the officer, particularly in provinces such as Ontario where there is no law or policy requiring a prosecutor or police force to investigate the courtroom conduct.
One Toronto officer, Det. Scott Aikman, has twice been accused of being untruthful by judges in different cases. The story of Aikman, and the two cases that crumbled, will be in Friday’s Star.
Though some may believe it is acceptable for officers to lie after taking guns and drugs off the street, the Star found the cost of the deception to community safety across the country is high.
The following suspects have walked free after officers lied in court: an accused pimp of a teenage girl, possessors of child pornography, a major ecstasy manufacturer operating out of a Scarborough house, members of an international data-theft and fake-credit-card ring, marijuana growers, and drug dealers carrying loaded handguns.
Judges have discarded as evidence at least $40 million worth of cocaine, meth, ecstasy and weed in recent years.
Some suspects, freed following police lies, continue to get in trouble with the law.
The Star attempted to contact all officers named in this series of articles. Some spoke to the newspaper. Most did not.
One of the biggest prosecutions involved Chuck Wan Leong, accused of operating an ecstasy lab in his two-storey brick house. Police found $16-million worth of ecstasy, methamphetamines and ketamine in the basement.
In that case, Justice Nola Garton said various parts of York Region Det. Robert Worthman’s testimony were “inconsistent and inaccurate,” “exaggerated,” “almost inconceivable,” an “embellishment,” “misleading,” “nonsensical” and “patently absurd.” The judge tossed the evidence and Leong walked free.
Worthman has been charged by his force with deceit and discreditable conduct.
Judges have found officers lie in court to cover up shoddy and illegal investigation techniques, excessive force, and racial profiling.
The majority of the cases reviewed by the Star involve police officers who, out of laziness, overzealousness or poor training, violated laws that protect suspects from abuse of police power, found damning evidence and then lied to cover up their flawed investigation.
“It’s the coverup that kills,” said an Ontario judge, who requested anonymity to preserve the appearance of impartiality necessary for his job.
Police officers have a difficult job and usually know who the criminals are, the judge said, but some play hunches to bust suspects, then “make stuff up” to patch their investigations.
“Police will end up lying on the witness stand. That’s just a reality … We (judges) know this happens. We talk about it all the time.”
While police officers can randomly stop vehicles to check vehicle safety or a driver’s paperwork, they must otherwise have reasonable grounds to believe an offence is being committed to stop a car, detain a person or search a house. Mere suspicion is not enough.
Suspicion is all RCMP Const. Brian Sprott had. In January 2009, on a rainy night in Maple Ridge, B.C., Sprott and his partner sat in their unmarked vehicle and watched a suspected drug house on Dewdney Trunk Rd. Then, on a hunch, they followed Chris Xiong after he pulled out of the driveway. This was a drug investigation, not a vehicle or driver safety check.
The Mounties stopped Xiong and found 12 individually wrapped, $40 crack rocks, three cellphones and more than $800 in cash. Sprott testified at trial that he stopped Xiong for speeding.
The alleged speeding, as well as Sprott’s claim that crack rocks fell onto the pavement when the suspect exited the vehicle, gave the Mounties their reasonable grounds.
But Sprott had earlier testified during a preliminary hearing that he intended to stop Xiong before he allegedly sped from the house. The Mountie was asked if his answers at the preliminary hearing were true and “(he) answered rather remarkably, ‘At the time, they were true,’” Justice Kathleen Ker noted.
She added: “Const. Sprott … appeared evasive and uncomfortable when questioned on this point.” On the witness stand, the Mountie, who never issued Xiong a speeding ticket, shrugged and awkwardly grinned.
“There is a legitimate public interest in having police officers provide their evidence to the court in an accurate and careful manner,” said Ker, who slammed the officer’s “flip-flop,” ruled there was no legitimate reason to stop Xiong’s car, tossed the evidence and let the suspect walk.
Sprott could have saved himself and his force the embarrassment with proper police work, such as continued surveillance of the house or car.
These bogus traffic stops and warrantless searches have led to wasteful prosecutions that tied up the taxpayer-funded courts and put alleged criminals back on the street.
Though the judges in these cases recognize that such large seizures of drugs, loaded guns and “highly reliable” proof of other serious crimes “cry out for a trial on the merits,” they find the police misconduct the greater sin. Angered at police lies in his courtroom, Justice Peter Hambly explained his difficult decision to stay charges against two men accused of operating a $16-million marijuana grow-op in Niagara Region:
“For the people involved in it to go unpunished leaves a sense of betrayal in hard-working, law-abiding people,” Hambly said, but he added: “If police lying is tolerated by the courts, they will soon lose the respect of the community.”
Hambly’s decision is being appealed.
The Star searched court judgment databases to locate cases since 2005 where judges found officers misled the court. The 100-plus cases, from Victoria to the Northwest Territories to Halifax, involved more than 120 officers denounced by judges for outright lying, misleading or fabricating evidence. The search also revealed:
• Some of the words judges used to describe police evidence and testimony were “lie,” “fabricate,” “evasive,” “absurd,” “ridiculous,” “subversive,” “disturbing” and “pure fiction.”
• Two officers — one in Victoria, the other a Toronto detective — have each misled the court in two separate cases.
• The chief of a suburban Winnipeg police force was charged with perjury and his force taken over by the RCMP after he allegedly lied to cover up details of his former partner’s role in a fatal drunk driving accident.
• In several cases, officers assaulted a suspect, then began their coverup by charging their victim with assaulting and obstructing police. Some of the victims were guilty of nothing more than a bad attitude.
• Racial profiling, and the subsequent police deception meant to hide the misconduct from public view, cost the people of 100 Mile House, B.C., the prosecution of Zai Chong Huang and the 57 marijuana plants found in his Dodge pickup by RCMP Const. Berze.
Berze testified he stopped Huang’s truck because it swerved in its own lane. The judge noted that Berze followed Huang for many kilometres before the alleged swerve. For this reason, and because of the wording and emotion of Berze’s interview of Huang after the arrest, the judge found the swerve was a “pretext,” and that Berze likely saw Huang at a gas station earlier in the night, noticed he was Asian and assumed he was involved in organized crime.
“Const. Berze was being untruthful with the court,” said B.C. Judge Elizabeth Bayliff.
The Star found 28 cases since 2005 that involved a total of 34 Toronto officers determined by judges to have misled the court.
Toronto Police Services Board chair Alok Mukherjee told the Star he has raised the issue with senior police officials and has been met with “a certain frustration and defensiveness. They’ll say, ‘The officer was being diligent and the judge was more interested in the Charter rights of a criminal than the fact that the officer found a gun, and they let that person go.’”
Mukherjee added, “I have some degree of frustration because I believe judges should be listened to.”
In a combative letter to the Star, Toronto police spokesperson Mark Pugash equated the language used by judges in the cases reviewed by the Star to “throwaway comments unsupported by evidence.”
“You either don’t understand, or you don’t want your readers to understand, the fundamental distinction between a judge’s comments and a judge’s rulings,” Pugash continued. “Without an understanding of such a basic point, your story cannot be taken seriously.”
“A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt,” Pugash said.
“The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence.”
Pugash said the onus is on defence lawyers, prosecutors and judges to report concerns over an officer’s testimony to police for investigation.
The cases in the Star study show judges painstakingly reviewed and deconstructed the facts, testimony and physical evidence presented in court, and concluded that officers lied.
The 100-plus cases found by the Star represent only a fraction of the problem.
One reason is that not all judgments are disseminated to the public.
Another reason, several sources say, is that when confronted with police dishonesty, some judges are reluctant to call it by its name, instead choosing innocuous language when assessing flawed officer testimony.
“It’s difficult to accuse someone who works so hard in the public interest of misleading the court,” said the Ontario judge interviewed by the Star.
Some lies, though, cannot escape the spotlight, especially when video or audio tells the unadulterated truth.
Video shot by civilian eyewitnesses exposed the lies of two Calgary officers who beat Jason Arkinstall while he was handcuffed and then charged him with obstructing, threatening and assaulting an officer.
The video, shot after 3 a.m. on Aug. 31, 2008, the weekend of a tattoo convention, shows Const. Brant Derrick smacking Arkinstall in the back of his head and throwing him head first and onto his stomach in a police van’s rear caged compartment. Arkinstall was thrown with such force his flailing legs almost hit the van roof. “In an obvious burst of anger,” Judge Terry Semenuk said, Derrick slammed the van doors on Arkinstall’s leg.
Semenuk acquitted Arkinstall of threatening Derrick. The other two charges were dropped before trial. The officers, the judge said, were “unreliable and not credible.”
Judge Semenuk was understating.
In court, before Derrick knew the video existed, Arkinstall’s lawyer asked him if he struck Arkinstall before throwing him into the van and slamming the van door.
Derrick: “It didn’t happen.”
Lawyer: “Didn’t happen?”
Lawyer: “You’re sure of that.”
Derrick: “Yes. I’m sure of that.”
Back inside a courtroom on University Ave. in Toronto, after listening to Justice Backhouse rule that Officers Shin and Tremblay lied and the gun they found was inadmissible, Delroy Mattison, clutching a small, yellow Bible, bows his head, smiles and walks out of the prisoner’s box a free man.
“The officers fabricated their story. They did as they felt. They lied,” Mattison says outside the courtroom. “They go to school for training. (Someone) should ensure the police are not breaking their own code.”
Mattison, 26, sees the judge in the hallway.
“Thank you, miss,” he says but gets no response as she passes through a door and into an office.