|
More on Ontario Police: Kenora | Scott
Gobeil | Toronto |
Winnipeg: Ewatski |
Accountability
Law bears down
on police conduct
With every
successful civil suit, bringing the enforcers to account grows
increasingly less futile, writes justice reporter
By KIRK MAKIN, Globe
and Mail, Mar. 31, 2003
The police royally blew it
when they rousted Dylan Chochla out of his bed in a University
of Western Ontario dormitory last year, drove him 200 kilometres
in handcuffs and threw him in the Don Jail.
Their first mistake was misidentification
-- as the Crown would eventually concede. Besides being a foot
taller than the arson suspect they were seeking, Mr. Chochla,
19, could prove he had been in a school gym class at the time
of the offence.
Their second mistake amounted
to sheer bad luck. Mr. Chochla's father happened to be Morris
Chochla -- a veteran Toronto litigator whose practice concentrates
on defending professionals caught up in errors and omissions.
Ooops.
Not long ago, the Chochla family
might have had little recourse. But the growing success of lawsuits
against the police has granted them the luxury of seriously considering
a claim for negligent investigation.
"The issue is: Once allegations
are made, do the police have a legal obligation to conduct an
investigation in a timely, proper and professional manner prior
to throwing students in jail?" Mr. Chochla asks.
"I would hope that our
legal system and, for that matter, our society, would insist
on it."
Taking on the police is becoming
a modest growth industry. With every successful lawsuit, the
civil route beckons more invitingly to those who allege they
have been wrongfully arrested, imprisoned, strip-searched or
convicted.
Having doggedly carved out
a career making the police accountable, Toronto lawyer Barry
Swadron is seeing the change. "I've never been deluged with
so many calls from people complaining about police abuse, excessive
force, wrongful arrest -- you name it," he says. "Police
officers are no longer invincible."
A decade or two ago, a lawyer
was more likely to secure a Supreme Court appointment than to
successfully challenge the law enforcement establishment.
Police lawyers would go to
the wall rather than settle, and judges and juries were notoriously
skeptical.
In addition, the threat of
paying a massive legal bill -- plus costs -- posed no small deterrent
to would-be plaintiffs.
While there are obvious public
policy reasons to shield the police from nuisance suits, erecting
them a legally impregnable fortress is equally shortsighted.
The point was underlined a
few months ago when Mr. Swadron won a momentous victory.
The Toronto Police Association
folded in mid-trial, paying big money to a Thomas
Kerr, a homeless man who alleged he had been beaten up.
Mr. Swadron balked at inserting
a gag order into the settlement -- with predictable results.
"People are coming out of the woodwork," he says. "There
are 10 calls like this a day. It's all I can do to return them."
Some plaintiffs are also looking
to litigation as a useful device for advancing social policy,
allowing them a vehicle to attack issues such as racial profiling
or intrusive searches.
"I certainly think the
area is emerging as one of the more effective ways of changing
police conduct," remarked lawyer Louis Sokolov, who devotes
half of his practice to police litigation.
Why is the civil system more
accessible than it used to be? For one thing, contingency fees
have given hope to those who had no prayer of launching court
action in the past.
A parade of wrongful convictions
in recent years has also served to alert judges and jurors to
the very genuine consequences of reckless or overzealous policing.
Plaintiffs' lawyer no longer come off sounding like left-wing
escapees from the Chicago Seven defence team.
In addition, several inquiries
into miscarriages have created a framework that courts can use
to assess proper police practice and misconduct. In particular,
Manitoba's Sophonow inquiry involved an intricate analysis of
factors involved in assessing damages -- ranging from time spent
in custody to effect on one's reputation.
"These have become the
standard of care," Mr. Sokolov says. "They hold police
to the sort of standard other professions are held to."
Malicious prosecution has long
been a tool of choice for plaintiffs, albeit one that is very
difficult to prove. However, Mr. Swadron can rhyme off an impressive
list of alternatives for framing a police action, including:
assault; battery; abuse of powers; negligence; intentional infliction
of mental anguish; unlawful search; false imprisonment; breach
of fiduciary duties and various breaches of Charter rights.
Lawyers have also tried probing
at the borders. Toronto lawyer Michael McQuade, for instance,
is currently suing several officers and a justice of the peace
for a client who was plucked out of his workplace in 1998, strip-searched
and thrown in the Don Jail for six days.
Mr. McQuade's client, John
Pispidikis, was released only after the Crown conceded that a
JP had ticked the wrong box on a standard form. Instead of giving
Mr. Pispidikis a year to pay a $5,000 fine, it authorized his
incarceration for a year.
Other evolving torts allege
that charges were laid on unacceptably weak evidence and that
officers were manifestly unfit for employment by a police force.
Mr. Sokolov said one area especially
ripe for action involves the use of flimsy evidence to deny an
accused person bail. Police frequently insert misleading material
to inflate their case, he said -- with dire consequences for
the accused.
Lawyer Julian Falconer urges
lawyers to let their imagination roam when they draft their claims.
"Civil litigation is an untapped resource, and citizens
have to take it into their own hands," he said in a recent
speech.
Mr. Falconer has taken his
own advice, attempting to open up the tort of "abuse of
public office" in a case involving Manish Odhavji -- a Toronto
man shot while escaping the scene of a bank robbery. The Supreme
Court has reserved its ruling after recently hearing the Odhavji
case.
Plaintiffs are finding that
provisions related to discovery and the production of relevant
documents are an enormous boon, typically forcing police defendants
to offer far more than would be disclosed in a criminal proceeding.
"We know there are many
secrets -- and you would not believe how effective a civil litigation
judge can be in getting them out," Mr. Falconer says.
One of the most dramatic consequences
of all this activity is seen during out-of-court discussions.
The real possibility of losing has made police more willing to
consider settling.
Has police litigation become
a hayride for plaintiffs? Hardly. It costs a bundle, necessitates
an exhausting search for evidence and a drawn-out battle with
skilled, well-paid counsel on the other side.
Nor should it become too easy.
However, if doctors, engineers or business people can be called
to account for making mistakes that devastate the lives of others,
police must also be within reach of the law.
"When you are up against
the police, the fight is long and hard and complicated,"
Mr. Swadron sums up.
But no longer is it an exercise
in futility.
kmakin@globeandmail.ca
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
