Update: see previous post – October 27, 2012 Ontario’s Crown Attorneys Will Soon Be Required to Report Cases Where They Believe Police Officers Have Lied Under Oath
A judge said Toronto police officer Euan McDermott’s testimony and evidence against a North York man were “inconsistent . . . impossible . . . and sadly, at times recklessly inaccurate if not outright deceitful.”
Under a new provincial policy — created after a Toronto Star investigation — the prosecutor in the case has reported the judge’s comments to the Ministry of the Attorney General, which then sent a copy of the judge’s comments to Toronto police.
It is up to police whether to discipline McDermott.
The case is yet another example of a growing problem in Ontario’s justice system: judges calling out officers for lying, misleading the court or fabricating evidence.
It also shows the provincial government is paying attention to the judges’ concerns.
In addition to his comments about McDermott’s credibility, the judge found problems began with the officer’s case when he “randomly stopped” Keyvon Hibbert’s car “to find out if he was in violation of his bail conditions.”
“Mr. Hibbert, like other Canadians, has a right to live his life free from arbitrary detention,” Ontario Court Justice Paul Taylor said.
A Star investigation earlier this year revealed more than 100 cases of police deception in Ontario and across the country. The Star also found that Ontario, like most provinces, had no formal mechanism to investigate allegations of police lying in court.
Provincial Attorney General John Gerretsen moved swiftly, ordering his chief prosecutor to look into the issue. Then, a few weeks ago, his office announced a new policy:
If a judge finds or comments that an officer was deliberately untruthful, or the Crown attorney has reasonable evidence that the officer was lying, the trial prosecutor must report it to her local manager.
After Det. Const. McDermott’s testimony came under fire from Justice Taylor, North York crown attorney Jenny Rodopoulos did just that.
On Sept. 11, Taylor ruled that certain evidence against Hibbert — who sped away from the traffic stop and was later arrested and charged with failing to stop for a police officer and dangerous operation of a vehicle — would be excluded, in part because of McDermott’s conduct during the investigation and trial.
The Crown later withdrew the charges, according to Hibbert’s lawyer, and Hibbert — a man who led police on a potentially dangerous midday car chase through a residential neighbourhood — walked free.
The Star’s initial investigation had found possessors of child pornography, a major ecstasy manufacturer operating out of a Scarborough house, drug dealers carrying loaded handguns and others walked free after police deception.
It is unclear if prosecutor Rodopoulos reported the judge’s comments about McDermott immediately after the ruling, or after Attorney General Gerretsen publicly announced the new policy Oct. 25.
Under the new rule, after the trial prosecutor makes a report, the supervising Crown will review the case file and court transcripts to see if there are grounds to believe the officer deliberately lied.
If there are grounds, the case is forwarded to a regional director, who makes the decision whether to send the case to police for investigation.
Police would decide whether the officer will be charged with a criminal offence. The police force may also internally discipline the officer.
McDermott did not respond to a request for an interview. A Toronto police spokesman said the force’s professional standards unit has not been notified of the judge’s comments.
Here is what happened:
On May 31, 2011, McDermott, stationed in North York’s 31 Division, pulled over Keyvon Hibbert on a side street just south of Jane St. and Finch Ave.
The nine-year veteran testified that he followed Hibbert’s silver sedan after seeing Hibbert speeding while also using a cellphone. He ran Hibbert’s licence plate through his in-car computer system and saw the 28-year-old had a bail condition barring him from using a cellphone.
The camera mounted inside McDermott’s cruiser recorded what happened next:
After making the stop on Yorkwoods Gate, McDermott approached the driver’s side window and started talking to Hibbert, who was out on bail after being charged by Ontario Provincial Police with a drug offence. (Hibbert’s lawyer says those charges were subsequently withdrawn and that Hibbert has no criminal record.)
The officer told Hibbert he was “going real quick over on Frith Street” then changed the topic to the long funeral procession that slowed traffic on Jane St.
The small talk turned to a discussion about Hibbert’s drug charges. Hibbert told the officer he had no restrictions attached to his release.
“You do have conditions, though,” McDermott said. “It says on the thing not to possess any cellphones, scales, all the rest of that stuff.”
“Do you have any of those things on you?”
“No, sir. I have a —”
“I’ll just make sure you don’t have any of those. Just jump out of the car.”
Hibbert’s tires squealed as he sped away.
As McDermott ran back to his cruiser, the camera on the dashboard filmed Hibbert’s car disappearing to the right, around the corner at Driftwood Ave. Hibbert testified that he then immediately turned into a parking lot, his lawyer said.
Squawking his car’s siren, McDermott raced to Driftwood Ave. and turned right. He sped south, moving into the opposing lane for nearly a block as he passed houses, an apartment complex and a side street. He rolled through a stop sign at Grandravine Dr.
McDermott scanned the near-empty road ahead of him.
“F***. Where’d he go? Where’d he go? Where’d he go?” the officer whispered.
In his police notes, written shortly after the incident, McDermott wrote that Hibbert drove through the stop sign at Grandravine, showing “no regards for safety of others in area.”
McDermott’s aimless pursuit went on another 700 metres before the police video ended.
“(McDermott) put in his notes that (Hibbert) drove through a stop sign at Grandravine and Driftwood Ave. A review of the video from the in-car discloses that that would have been impossible for the officer to see,” Justice Taylor said in his ruling, calling parts of the officer’s testimony “reckless.”
“I find that I cannot place much credence in his evidence.”
McDermott told court that he stopped the driver because he believed he was speeding and also wanted to see if the driver was in breach of a cellphone ban imposed as part of a previous court order. In his testimony, McDermott said he took care at all times to ensure he was not breaching the driver’s rights or “treating him unfairly.”
The judge found that McDermott stopped Hibbert after running his licence, part of a “fishing expedition” to see if he was in violation of his bail conditions.
McDermott “was also prepared to overstate his evidence in order to justify his actions and to implicate the accused,” Justice Taylor said. “His behaviour was brazen and flagrant.”
When a police officer walks into a courtroom to testify, “he has an immediate status of credibility,” said Ehsan Ghebrai, Hibbert’s lawyer.
“At the end of the day, it’s a police officer getting on the stand and deliberately lying to get a conviction,” Ghebrai said. “We deserve better.”