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Thomas Kerr
Homeless man claims victory
in suit against Toronto police officers
CBC 24 Jan 2003
Thomas Kerr and his lawyers
told a packed news conference they feel vindicated. Even though
there's been no admission of any guilt in the case, Kerr says
it's a victory for others on the street.
"It's for everyone who
is homeless. I figure they thrive on the weak and you've got
to stand your ground. The truth did come out. I fought this for
many years and I stuck to my guns. I know what happened that
night. I was there and that's the bottom line."
Kerr was suing for $750,000,
but he's not talking about how much he's won.
He's claimed for six years
that he was beaten by a group of Toronto police officers in a
revenge attack for an incident where Kerr broke an officer's
arm.
The lawyer for the police officers
says the settlement is not an admission they did anything wrong.
Gary Clewley says the officers decided to settle because the
case was getting too expensive.
"No one is conceding anything
happened here. This thing was settled because the costs were
greater than anyone could have anticipated and there is no end
in sight," he said.
The settlement comes just before
a crucial witness was supposed to testify. Craig Bromell, one
of the accused officers and now the head of the police union,
was going to be called to talk about the evening in question.
The deal means none of that testimony will be heard.
Kerr will now be paid monthly
sums from a trust fund, rather than the lump sum he wanted. He'd
hoped his settlement might buy him a cottage on a lake.
Kerr's lawyer says the monthly
payment arrangement means Kerr, who is still struggling with
alcoholism, won't blow the settlement. He'll now have financial
support for the rest of his life.
Fifth Estate coverage | Now
magazine news feature
Thomas Kerr's worst nightmare
ROSIE DIMANNO, Jan. 16,
2003.
So, figure this: A homeless
man who has brought a civil suit against nine Toronto police
officers for allegedly beating him up is now - and there's no
other way to put this - to be minded in court by ... a Toronto
police officer.
And although Thomas Kerr is
known to hate cops, to resent even the very sight of a police
uniform, the constable on Kerr duty as of today at the University
Ave. courtroom will be ... in uniform.
Presumably, he or she won't
be from 51 Division. That would be a bit much.
The order was made yesterday
by Mr. Justice Paul Rivard, after complaints about Kerr's behaviour
from the lawyer representing the 51/9 - the officers from 51
Division who are the respondents, along with the police services
board, in the $750,000 civil action. "He appears to be intoxicated,"
Gary Clewley told Rivard following the morning break. "He's
acting in an aggressive manner, calling out unprintable names."
Rivard did not personally witness
such conduct, which allegedly occurred outside the courtroom.
Nor would he agree to a request from Kerr's lawyer, Barry Swadron,
to hold a voir dire - a trial within a trial - in order to determine
whether Kerr was in fact drunk in court.
But Rivard, pointing out that
he now had two conflicting allegations of Kerr's condition as
part of the record - Clewley's accusation, Swadron's denial -
was taking no chances, nor inferences. "They're not issues
that are going to cloud the issue or impact on my judgment of
this case," Rivard said.
Several reporters had overheard
Kerr mumbling comments toward some of the named officers after
the morning break. The plaintiff quickly went from sotto voce
to vive voce as he derided the officers while a friend tried
to calm him. The one-way exchange continued as Kerr got on the
escalator.
Kerr did not return to the
courtroom after the break and thus was not present when Rivard
issued his order. His friend, a woman who works with the Out
of the Cold program for Toronto's homeless, told Rivard that
Kerr had gone home.
Swadron, who'd not spoken directly
to Kerr yesterday, told Rivard that his client "gets agitated
from time to time, he gets upset with the testimony he's hearing
because he doesn't agree with it." But while that may be
so, Rivard was of the opinion that a constable in the courtroom
might dissuade Kerr from making any abusive remarks toward the
officers, or even threatening them, although no one had suggested
that a threat had been made.
Swadron took a dim view of
the development. "Frankly, he gets very agitated by the
sight of police." Rivard, however, stuck to the argument
that a uniformed constable would "deter" any unacceptable
behaviour on Kerr's part. Countered Swadron: "I don't know
if that's true on this occasion."
It should be noted that Kerr
has been violent with officers in the past, at one point, in
1996, breaking the arm of a cop, Constable Gordon McLeod. McLeod
is one of the officers named in the suit, wherein Kerr claims
he was taken to an isolated spot near Cherry Beach and pummelled
by cops, this in retribution for having broken McLeod's arm two
weeks earlier. (Court has heard that McLeod's arm was broken
after he dove to tackle Kerr following a confrontation on a movie
set.)
There's no way of knowing if
Kerr was indeed drunk in court yesterday morning, which is surely
not against the law, per se. But as Kerr told court himself,
during his time in the witness stand, he is a colossal drunkard;
he drinks all the time, morning, noon and night. But during the
many weeks of the trial thus far, Kerr - a street person who
sleeps on the streets, in hostels and more recently, apparently,
in his mother's Scarborough home - has somehow managed to get
himself to court every morning, dressed in suit and tie, neat
and clean, and outwardly composed.
He's missed only a couple of
days when he was ill with "cramps."
It's no easy thing, for a chronic
souse, to stay on the wagon for so long, or even to curtail his
prodigious drinking. That's one of the exceptional characteristics
of this legal exercise. Kerr's essential nature - as both street
person and sot, with all the blows to his credibility that ensue
from that - rendered his entire case remarkable from the start.
Few ever believed the case would come to trial. Indeed, Kerr's
reputation - he's also been proven to lie on countless occasions
and admits he invented another assault by police, involving 51
Division officers - went a long way toward discouraging the crown
attorney's office from proceeding with criminal charges against
the 51/9. They were not charged criminally or under the Police
Services Act following a lengthy internal affairs investigation.
Yet somehow, the case has ended
up in court, with legal aid footing Kerr's bill, a rarity for
civil actions.
The second of two officers
named in the suit, Constable Albert Coombs, took the stand yesterday,
called by Clewley.
Clewley wasted no time getting
to the heart of the matter. His first question: "Did you
participate in an assault on Thomas Kerr?"
Coombs: "Absolutely not."
Kerr, of course, was not around
to react - in whatever way he might have seen fit.
A shaky grasp of the details
ROSIE DIMANNO COLUMNIST,
Dec. 10, 2002.
When homeless Thomas Kerr took
the witness stand yesterday, he looked rather different than
he had back on Friday afternoon.
The left side of his face was
swollen, pushing down the edge of his wide mouth. There were
fresh bruises around his eye.
He looked, in fact, closer
to the image as portrayed in photographs, now six years old,
taken by Internal Affairs investigators just a day after the
beating Kerr alleges he suffered at the hands of retributive
police officers from 51 Division, D platoon. He looked, further,
like the oft-injured and frequently battered street person -
a rounder and ruffian, by his own admission, a man prone to brawling
when drunk, which is most of the time - so familiar to many downtown
beat cops and charitable agencies.
It wasn't necessary for police
lawyer Gary Clewley to draw out the obvious, though he did, which
was perfectly reasonable as part of his cross-examination parry
and thrust: That Kerr had been in another fight over the weekend.
"When you get drunk, you
sometimes get violent, don't you?" "Yes sir."
"You were in one, by the
looks of it, recently, weren't you?
"I bet you were in one
on the weekend.''
"Yes sir."
Kerr, who is suing nine officers
and the Toronto police board for $750,000, is a textbook vagrant,
a mendicant, a product of the streets. He's lived on them since
he was 14, 15 years old, and is now 39. He survives by his wits,
by charity, by the commission of petty crimes, and on a monthly
$873 disability pension for a bum arm and bad back dating back
to the time "I got thrown through a plate glass window"
by "just some thugs." He drinks in the morning, he
drinks in the afternoon, he drinks at night. Beer, mostly, but
also wine and, when he can get it, "the hard stuff."
He takes drugs: marijuana, cocaine, heroin, speed, LSD. "But
I prefer my alcohol."
He claims to have been a boozer
since the age of 9. His mother lives in Toronto - he stayed with
her on Sunday night. Saturday, he slept at a downtown shelter.
There's a common-law wife in the picture - they've been together
for nine years, notwithstanding "a few breakups" -
but no kids. He works occasionally, mostly as a labourer. He's
trained as a welder, but he's inevitably fired from those jobs,
on account of the drinking.
Not uncommonly for drunkards,
he has blackouts, lots of blackouts. Can't remember what he's
done, where he's been, what's been done to him.
Much of the time he's in a
drunken fog, with little penetrating the miasma of alcohol.
Thus, Kerr has almost no recollection
of an incident that occurred on Aug. 9, 1996, a full 12 days
before the alleged police beating he says took place at a secluded
lot off Cherry St. But he didn't dispute the facts as put to
him by Clewley: That he'd been "drunk as a skunk,"
said Clewley, when he began harassing a woman on a film shoot,
that he then began banging on the hood of a car, that he - unprovoked
- attacked a police officer in uniform (this would have been
Constable Gord McLeod, one of the officers named in his civil
suit), breaking the officer's arm.
"Yeah, that's true,"
agreed Kerr, though he clearly had no recollection of those events
himself, which Clewley also pointed out. "You don't know
whether it was a woman, a guy or a giraffe," the lawyer
charged, referring to the woman Kerr had harassed.
No disagreement there.
Yet Kerr managed, nearly two
weeks later, to identify McLeod - then wearing a sling, on his
first day back at work - as the officer who I.D'd him to a fellow
cop, Constable Albert Coombs, who then allegedly took Kerr from
51 Division, in his cruiser, to the Cherry St. site.
This all gets very complicated
and convoluted, not helped at all by Kerr's booze-addled brain,
nor by the repeated episodes of arrest and drunkenness, nor by
the wild discrepancies in Kerr's various accounts to police and
his statements during the earlier discovery phase of this trial.
On Aug. 21, 1996, Kerr was
arrested in the morning for throwing a brick through a window.
He was processed at 51 and released a couple of hours later.
At that point, according to one of his accounts, he set off to
see a friend who worked as a cook at a downtown restaurant, in
the hopes of getting some money owed him, so that he could buy
more alcohol.
In one version of the story,
Kerr used the restaurant's washroom facilities to clean himself
up. In another version, he never made it to the restaurant at
all but was arrested again by two cops - he's also said one cop,
in a previous statement ("I do get mixed up sometimes'')
- for being drunk in public.
In any event, records show
Kerr was brought back to 51, booked, thrown into the drunk tank,
and released later that evening. Whereupon, he alleges, Coombs
whisked him away to Cherry St.
Under questioning from his
own lawyer, Barry Swadron, Kerr said Coombs had offered to drive
him home - wherever home might be. Instead, he found himself
at the isolated lot, frightened now, and stuck in the back of
the cruiser.
"I wasn't handcuffed,
but you can't get out from a cop car once they shut the door
on you."
> From the backseat, Kerr
told the court, he saw two other police cars arrive. (He'd previously
said three.)
He watched as the officers
proceeded to drink - he thought they were imbibing beer - then
pull on gloves. At that point, Kerr said, the back door of the
cruiser in which he was sitting was flung open and he was kicked
on the side of the face, pulled out of the vehicle, forced down
against the gravel lot surface "on my hands and knees,"
punched, kicked and beaten. There were, he said, five cops in
uniform doing the beating. (He's previously said there were as
many as nine.)
Kerr finally got away, he told
the court, limped to Street City on Front St., a homeless shelter,
where he asked for help. The fire department arrived first, then
an ambulance that transported him to St. Michael's Hospital,
where he gave an initial statement to police and took his leave
the next morning without consulting staff. Internal Affairs nvestigators
finally tracked him down, later, to a cell at 52 Division, because
he'd been arrested yet again.
Watching Kerr in the witness
box yesterday was ... painful.
He is what he is - a drunk,
a wastrel, a violent man with a booze-blurred memory. On cross-examination,
he admitted that he's lied to police at various stages of this
investigation, that he's exaggerated, that he's fabricated bits
to fill in the blanks. But on one point he was dogged and sure:
A bunch of police officers beat him up on the night of Aug. 21,
1996.
There is some forensic evidence
to support that claim - his fingerprint inside Coombs' cruiser,
his blood on another officer's boot, a strand of what's believed
to be his hair caught in yet another officer's gunbelt, radio
communications from seven of the named officers referring to
"The Trailers,'' as the Cherry St. site was commonly known,
a wiretapped conversation.
And in a trial that has had
no shortage of peculiarities, there is also this: The case will
probably not turn on the evidence of a booze-befuddled, self-contradicting,
homeless plaintiff.
If he hit the bottle after
yesterday's ordeal, Thomas Kerr might take comfort in that.
Suing over alleged beating
in 1996 False accusation in other incident
NICK PRON, Toronto Star,
Dec. 11, 2002.
The man suing nine Toronto
police officers for an alleged beating near Cherry Beach has
admitted that he later falsely accused other officers of assaulting
him, a court was told. In December, 1996, near Queen and Sherbourne
Sts., two officers from 51 Division had actually come to Thomas
Kerr's rescue when he was assaulted.
But the officers ended up being
the focus of a probe by the province's Special Investigations
Unit when Kerr said they broke his jaw, court was told.
"You interfered with the
careers of two officers who went there to help you," Gary
Clewley, the lawyer for the nine officers in the alleged Cherry
Beach incident, said to Kerr. He agreed.
"These guys were put on
the shelf for something they didn't do, and that's not right,"
Clewley said to Kerr. Again, he agreed.
The two officers were later
cleared. A passing motorist who had witnessed the December, 1996
assault told SIU investigators the officers helped, not hit,
Kerr in the incident, about four months after Kerr's original
August, 1996 complaint against the nine for the Cherry Beach
incident, the court heard.
"This was all made up,
every lick of it," Clewley said to Kerr, who was nearly
charged with mischief over the December complaint. He admitted
it was.
Clewley wanted to know why
he did it, and Kerr first answered that he didn't know.
But in later testimony, the
39-year-old homeless man elaborated, saying:
"Yes, it was false, but
you have to understand I have no use for them (police) after
the incident that happened to me in August. I have no respect
for them, sir."
The alleged beating Kerr said
he received from the nine officers from 51 Division in August,
1996 prompted the biggest investigation in the history of the
city police internal affairs unit, but no charges were ever laid,
either criminally or internally under the Police Act.
The decision not to charge
the officers was made after three seasoned lawyers read the file
and advised the force not to lay charges, the court has heard.
Kerr later sued the nine, with
Legal Aid funding his lawyers, Barry Swadron and Nils Riis. The
burden of proof in a civil trial is less than a criminal case,
where guilt has to be proved beyond a reasonable doubt.
During his two days on the
stand, Kerr has admitted to a number of lies, including making
up the comments that one of the nine officers supposedly said
to him on the night of the assault.
That prompted Clewley to remark:
"The lie-o-meter keeps going off."
Later, Clewley told Kerr: "You
play with the truth. You commit an assault on the truth,"
but Kerr denied that.
Kerr also acknowledged in his
testimony that he made a second false allegation against police
officers from 51 Division, this one about a month after his original
complaint in August.
"Why make a false complaint?"
Clewley asked Kerr, who was an alcoholic at age 9 and the son
of a biker with Satan's Choice.
Kerr agreed with Clewley that
he was "mad at the world."
The trial resumes today.
-----------------------------
Sealed police locker was opened,
trial told: Evidence tampering alleged in beating case
Homeless man says officers
assaulted him
NICK PRON, Toronto Star,
Dec. 13, 2002.
There was an apparent tampering
with evidence being collected by investigators against nine Toronto
police officers accused of beating up a homeless man, a court
has heard.
Soon after Thomas Kerr accused
the 51 Division officers of assaulting him as payback for breaking
a police officer's arm, detectives sealed the clothing lockers
of the officers, the trial was told yesterday.
But about four hours after
the lockers had been taped shut and padlocked following the Aug.
21, 1996 incident, detectives noticed one of the locker doors
in the basement of the station was damaged, Detective Frank Skubic
testified.
"It appeared to me it
had been forced open," Skubic said about the locker belonging
to Constable Paul Rubbini, one of the nine under investigation,
among them Craig Bromell, who would go on to become head of the
police union.
Skubic told Barry Swadron,
Kerr's lawyer, that the door had been pried back enough so that
there was a space between the door and the frame.
In an agreed statement of facts
presented to the civil trial, in which Kerr is suing the officers
for $750,000, "it is unknown if evidence was removed from
the clothing locker," a document stated.
A hinge on that locker was
also loose, "separated from the fixed part of the post,"
Skubic explained to Mr. Justice Paul Rivard in the Superior Court
of Justice trial by judge alone.
Skubic also told Swadron that
the police seal on several other lockers had been "spliced
open," but the lockers were not otherwise touched.
Skubic, then a detective at
51 Division and now with the homicide squad, had been assigned
to investigate Kerr's accusations, telling Swadron it took him
about 12 minutes to find the alleged crime scene, where Kerr
said he had been beaten. After talking to Kerr at the hospital
and getting a description from him of the site, he testified
that he and his partner scouted an area south of Front St. and
determined Kerr had been talking about a desolate spot near Cherry
and Mill Sts.
Five investigators from internal
affairs later took over the case from Skubic, but no criminal
or internal Police Act charges were ever laid.
The force decided not to lay
charges after three veteran lawyers advised there was "no
reasonable prospect" of getting a conviction at trial.
But in a civil trial, the burden
of proof is less than in a criminal case, where guilt has to
be proven beyond a reasonable doubt.
The court heard earlier that
no evidence linking the officers to the alleged beating of Kerr
was found at the site.
Kerr would go on to give several
versions of what happened that night, including one in which
he said he was driven to the site in a cruiser after his release
from 51 Division on another matter, pulled from the cruiser and
beaten.
The trial resumes on Monday.
How to beat the cops
(from Eye Magazine)
Vern Smith raises an interesting
point: can Thomas Kerr prove his brutalization complaint against
Toronto cops ("Excessive force," News, Nov. 23)? His
attorneys could present, along with the ample material evidence
of police culpability that they already have, evidence of the
myth of police professionalism. Most criminologists subscribe
to the policing theories of Jerome Skolnick and Richard Ericson,
who posit that cops enforce occupational-cultural dictate, using
criminal codes as a "residual resource." One American
study (Kolts Commission, 1992) quoted a cop admitting that the
de facto offence of "contempt of cop" or "rage
at defiance of authority" is the basis of all excessive
cop force.
Kerr could easily establish
that excessive force is a Toronto cop tool. He need only raise
the fact that one of the Cherry Beach Eight -- Craig Bromell
(president of the Toronto Police Association) -- went to California
to learn the legal-political model of policing, as adopted by
his union counterpart, the Los Angeles Police Protective League
(LAPPL). Both the "take-down" measures inflicted against
Judy Sgro and Olivia Chow and the "windshield sticker"
outrage were L.A. model practices, which include revenge enforcement
against "civilian scumbags" and harassment ("phonejacketing")
of honest police officers.
After Bromell's return to Canada,
70 LAPPL cops were terminated during the "Ramparts Division"
scandal, while 28 were arrested and charged for evidence-planting,
testimonial perjury and other corruption crimes. The L.A. city
council had created unaccountable front-line policing units (CRASH
-- Community Resources Against Street Hoodlums) which, perversely
indulged, took licence to nationalize private crime. In August,
Michael Judge of L.A.'s Public Defenders Office announced that
up to "30,000 criminal cases" might have to be reviewed
because of the cop scandal. Similarly, the arrest of eight TPA
cops earlier this month could affect hundreds of cases and impose
millions of dollars in civil liabilities onto the people of Toronto.
The blank-cheque policies Bromell has promoted during his ongoing
war against the Special Investigations Unit will CRASH just as
fast as the union careers of his LAPPL mentors.
Kerr could support his case
by quoting from LAPPL's report (Chemerinsky Commission, September
2000) into the CRASH scandal. Therein, L.A. cops admit that a
"culture of war" permitted atrocities to be inflicted
against social marginals and that the arsenal included the "fabrication
of evidence, and perjury." Further, only two weeks ago,
L.A. Mayor Richard Riordan signed a "consent decree"
allowing federal control of the city police, thereby admitting
to a "pattern or practice of excessive force, false arrests
and unreasonable searches and seizures." And Kerr could
raise issues for trial, filed on Aug. 24, by 41 LAPPL members,
who claim that cop dictators enforced a "code of silence,
by harassing and retaliating against those officers who reported
misconduct."
Of course, Kerr could trump
the adversaries by citing Bromell's infamous November 1999 interview
with Victor Malarek of the fifth estate, where Toronto's top
cop said of his crypto-CRASH model, "You forget everything
that you learned in police college. It is us versus them."
On that fascistic note, Kerr need only fast forward to Feb. 25,
2000, and repeat the court statement of jailed LAPPL cop Rafael
Perez, who said, before being sentenced to five years in prison,
"The us-versus-them ethos of the overzealous cops began
to consume me.... Used wrongfully it is a power that can bend
the will of a man to satisfy a lustful moment. It can open locked
bolts to facilitate theft. It can even subvert justice to hand
down a lifetime behind bars." On that, Kerr could rest his
case. -- R.G. FULTON, HAMILTON
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell