Update: see previous post – September 30, 2014 Toronto: Drug Squad Officer’s Evidence Thrown Out By Judge
A Toronto police officer rebuked by a judge last week for fabricating evidence was criticized last year by another Ontario judge, who had “serious concerns” about Acting Sgt. Robert Warrener’s credibility in a separate drug case.
One year before that, in February 2012, another judge ruled courts were misled by a sworn document prepared by Warrener, based on evidence later found to be fabricated by another officer.
But Toronto police are refusing to say whether the force’s professional standards division has previously investigated Warrener, or what, if any, discipline he has faced.
Citing a confidentiality provision in the provincial Police Services Act, Toronto police spokesperson Meaghan Gray could confirm only that no charges have been laid against Warrener under the act.
The secrecy has legal experts asking if enough is being done to stop police officers who are found giving deceptive evidence in court.
“The police don’t work for and serve IBM or Walmart. They work for and serve the public,” said criminal lawyer Reid Rusonik. “How can we ensure they are using the power we entrust in them to jail us honestly if the processes of reporting, investigating and determining whether they have perjured themselves aren’t transparent?”
Last week, Superior Court Justice Beth Allen rebuked Warrener — a 20-year Toronto police veteran who appears on Ontario’s “sunshine list” of public employees earning more than $100,000 — for “inexcusable deceptive conduct” in order to obtain a search warrant.
Ruling that Warrener “deliberately fabricated” a hand-to-hand drug deal, Allen threw out all evidence against the drug squad’s target, accused trafficker Pankaj Bedi. Bedi was acquitted the same day.
Warrener declined comment through Mike McCormack, president of the Toronto Police Association.
As a result of a 2012 Star investigation exposing police who lie in court, Crown counsel in Ontario are required to report to their ministry superiors any judicial finding that an officer has been deliberately untruthful under oath. The director of Crown operations will then review the matter and decide whether it should be forwarded to the police force in question, which may prompt an internal investigation.
The Public Prosecution Service of Canada (PPSC) has a similar “guideline” that Crowns flag deliberately untruthful police testimony in federal cases.
Toronto police confirmed an internal investigation has been launched by the force’s professional standards division into last week’s ruling that Warrener fabricated evidence. If the investigators find grounds to proceed, he could then be charged with offences under the Police Services Act, such as deceit or discreditable conduct.
But neither the provincial Ministry of the Attorney General, which prosecuted the 2012 case in which Warrener prepared the sworn document, nor the PPSC, which prosecuted a 2013 case in which a judge had “serious concerns” about Warrener’s credibility, will say if the Toronto Police Service was notified of the past cases in which a judge identified problems with the information provided by police.
“The PPSC cannot comment on specific cases or matters that may or may not have been brought to the attention of police for investigation,” said Sujata Raisinghani, spokesperson for the federal service.
Both Raisinghani and Brendan Crawley, spokesperson for Ontario’s Attorney General, declined to comment on why neither can give information about specific cases.
Toronto police also would not say whether the force had been notified by the Crown about the two prior cases.
James Miglin, the criminal lawyer who represented Bedi, questioned why the provincial Crown would assure the public that it has a policy to investigate troubling findings, but then “refuse to provide information about those investigations — what cases are being referred, the nature of the review, the ultimate determinations made and the reasons underlying those decisions.”
“It is disgraceful to hold that policy out to the public, tell them something is being done about it, and then refuse to answer questions or provide any details on it,” Miglin said in an email.
In February 2013, Ontario Superior Court Justice Nancy Spies wrote that she had “serious concerns about the credibility of Officer Warrener” in a drug trafficking case. Two drug-related charges — ketamine trafficking and marijuana possession — against the accused, Daniel Kang, “largely depended” on Warrener’s evidence, Spies wrote.
Warrener testified that while working undercover, he overheard a drug-related conversation between Kang and another man, Troy Dubord, which formed the basis for arresting and charging Kang. Citing problems with Warrener’s testimony, Spies ruled she was “not satisfied Officer Warrener overheard the conversation that he alleges.”
Spies found Kang not guilty on both counts; Dubord pleaded guilty to one charge of ketamine trafficking.
Like Justice Allen — who was doubtful of Warrener’s highly detailed testimony about a hand-to-hand drug deal he claimed to have witnessed, particularly after he admitted he had taken no notes about the supposed incident — Spies found Warrener’s comprehensive account of the drug conversation suspect.
“As he was testifying I observed that he seemed to have better detailed recall than seemed possible given how long ago the events were,” Spies wrote. “I am not sure whether or not Officer Warrener ever answered a detailed question with a response that he could not recall, but if he ever did it was certainly surprisingly rare.”
When Warrener was questioned about the “very important issue” of the accuracy of his notes regarding the conversation, Spies said the officer was “evasive” and “defensive” in cross-examination.
When asked if he could have been capable of hearing the conversation from his location near a busy bus stop on Danforth Ave., Warrener testified that he and the two men were in their own “bubble” that allowed him to hear their conversation — a claim Spies found “incredible.”
Spies also questioned why Warrener did not communicate the conversation to other officers via police radio, something she expected would be done.
“The fact no mention of this conversation was made over the radio undermines the evidence of Officer Warrener in my view that he, in fact, heard such a conversation,” Spies wrote. “In this regard I prefer the evidence of Mr. Kang and Mr. Dubord who both denied such a conversation took place.”
In another drug case from February 2012, Ontario Court Judge Timothy Lipson criticized Warrener and three fellow drug squad members for “misleading” the court to in order obtain a warrant to search the home of a suspected cocaine trafficker.
On Feb. 10, 2011, three officers entered the home of Dwight Wisdom without a search warrant. The officers justified the entry by saying there were “exigent circumstances”: shortly before the entry, they had arrested Wisdom and his girlfriend, Julieta Gonzales-Santonja, but believed there was a risk others had been alerted and could enter the apartment to destroy evidence. The warrantless entry, the officers said, was intended to “freeze and secure the premises pending the issuance of a search warrant.”
But Lipson ruled that officers did more than just secure the apartment, unlawfully searching it in order to get supporting evidence for a warrant.
Warrener, who prepared the document — called an “information to obtain” (ITO) a search warrant — included in it observations made by another drug squad officer while inside the apartment, information that cannot be included in an ITO, Lipson ruled, because it was obtained through “an unconstitutional search.”
Among the evidence Warrener included in the ITO was that an officer had observed cooking utensils with cocaine residue inside the apartment. A test would later conclude the residue was not cocaine.
“The seriousness of the breaches is obvious. The officers engaged in a warrantless search of the applicants’ home not only to secure the residence but also, in my view, to find evidence in order to bolster their grounds for obtaining a search warrant,” Lipson ruled.
Their conduct was “deliberate and demonstrated a wilful or reckless disregard” for Wisdom and his girlfriend’s Charter rights against unreasonable search or seizure, Lipson said. He ruled the evidence could not be included in prosecution, and the charges were dropped.
Joanna Goldenberg, a criminal defence lawyer who represented Gonzales-Santonja, said in an email that Warrener may have drafted the ITO based on information that was relayed to him, not knowing it was false.
But Rusonik said when you swear an ITO, you’re not allowed to be simply a “conduit.”
“You’re vouching for the integrity of the information that other officers are giving,” he said. “You’re presumed to have assessed its reasonableness; you’re presumed to have ensured that they were behaving legitimately and honestly.”
The issue of Warrener’s credibility in court came up during the Bedi trial, after Warrener “expressed pride” in the previous search warrants he had prepared — “boasting” that the courts have never overturned any of them, Allen wrote in last week’s ruling.
When Miglin raised the 2012 case in which Warrener prepared the ITO, Warrener reneged on his assertion and apologized, stating he had been “rather elevated emotionally” when he made the claim. He explained that what he meant to say was that none of his warrants were overturned because of an error he made, Allen wrote.
But Allen did not accept Warrener’s explanation, calling it “disingenuous.”
“I actually did not find Officer Warrener inordinately elevated or excited when he gave that evidence. He was just adamant, adamant about his reputation,” she wrote. “If he wanted the court to hear the proviso he intended to put on his assertion he could have simply stated it. Nothing prevented him from doing so.”