the judge noted in his Sept. 30 oral ruling that Shuparski and two other
witnesses had criminal records. "These matters must be investigated to protect
the public's confidence," said Young. But he stressed "it is too dangerous to
rely on the Crown's unsavoury witnesses, particularly when an officer denies
a veteran provincial court judge, has a reputation among the defence bar as
someone with a higher than average rate of convictions. In his Higgins verdict,
the judge noted the Supreme Court decisions in R v. Starr and R v. W.(D.) and
stated "the benefit of the doubt must go to an accused person."
was charged after an investigation by the province's Special Investigations
Unit. He was accused of breaking Shuparski's arm in a police interview room on
April 1, 2004, a few hours after Shuparksi was arrested and charged with
selling a small amount of methadone to an undercover officer.
has a criminal record dating back nearly 30 years, mostly petty offences
related to his drug problems. He testified that after refusing to give the
officer his date of birth, Higgins became enraged and punched and kicked him
"like a football," fracturing his forearm. The officer weighed 270 pounds.
Shuparski weighed about 130 pounds.
defence theory presented by lawyer Gary Clewley was that Shuparski's arm had
been broken as he was lawfully subdued a few hours earlier during his arrest,
although he did not complain of pain at that time.
Crown presented medical evidence that Shuparski's injury was consistent with a
"direct blow" to a specific spot. Three people outside the interview room who
were arrested that night, said they heard Shuparski yell that the officer broke
sameness of these accounts is not tainted by the possibility of collusion,"
said Crown attorney John McInnes in his closing submissions. He referred to a
recent Supreme Court ruling in R v. Kehler, which clarified when a trier of
fact may accept the testimony of a "disreputable witness."
acquitting the officer, Young read his notes of the trial testimony of
witnesses for over three hours, drawing puzzled looks from the Crown and
defence. The actual findings took less than three minutes to deliver and Young
did not say much more than he had a reasonable doubt.
said he was disappointed with the verdict and the Crown would consider an
Crown may have a ground of appeal as a result of a recent Ontario Court of
Appeal ruling in R v. Kendall, which found a
trial judge must provide adequate reasons for an acquittal, similar to the
standard for a conviction.
its decision last year in R v. S.J.D., the Court of Appeal stated, "the
adequacy of reasons is not measured by the inch or the pound, but instead by
whether the reasons explain the basis for the decision and allow meaningful
lawyer Colin Adams, who has represented Shuparski for more than 15 years,
praised McInnes and colleague Jamie Luckach, and said he had no doubt they put
forward a strong case.
wouldn't lie," about an assault by police, said Adams, who indicated that his
client normally pleads guilty to his criminal charges.
partner with the Toronto
law firm Hicks Block Adams suggested that even in 2005, "asking a court to
disbelieve an officer is generally asking too much. Unless you have it on
video, you have an uphill battle."
criminal trial was not the first allegation of violence against Higgins. He was
a defendant along with other officers in a civil suit filed by a Vietnamese
family alleging robbery and theft, which was settled in 2002. The terms were
not made public.
ongoing civil action filed by pizzeria owner Milos Markovic claims he was
stripped naked and beaten during a 1999 raid and that drug squad officers stole
more than $200,000 from his safety deposit box.
is alleged to have played a central role in the beating and not the alleged
theft, said Markovic's lawyer, Peter Biro, a partner with Goodman and Carr LLP.
officers were charged with 40 corruption-related offences in January 2004 after
a lengthy and widely publicized probe by an RCMP-led task force into
allegations of wrongdoing by a now disbanded drug squad.
officers charged were all part of a unit led by Staff Sgt. John Schertzer. No
officer from the drug unit where Higgins was assigned was charged by the task
were viewed by the force as golden boys," said Biro. "The Schertzer crew was
going to take the black eye for the force so it would be consistent with [former Toronto
police chief Julian Fantino's] theory of a few bad apples. This was always a
public relations exercise."
has provided a statement under oath to police. Biro said, "anyone present at
that interview would be hard pressed not to take his allegations seriously."