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Cops should get benefit of doubt: Young

|Written By Shannon Kari - Law Times

Aprovincial court judge in Torontohas warned of the dangers of not accepting police testimony when accusationsare made by people with criminal records.

Justice Bruce Young made the comments as he acquitted Det. Chris Higgins of assaulting and breaking the arm of a 50-year-old drug suspect in custody.

Young described the case against Higgins as a "strong one" based on the evidence of the complainant Gary Shuparski and three witnesses who were also detained at a downtown Toronto police station that night.

However, 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 it."

Young, 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."

Higgins 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.

Shuparski 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.

The 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.

The 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 his arm.

"The 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."

In 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.

McInnes said he was disappointed with the verdict and the Crown would consider an appeal.

The 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.

In 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 appellate review."

Defence 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.

"[Shuparski] wouldn't lie," about an assault by police, said Adams, who indicated that his client normally pleads guilty to his criminal charges.

The 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."

The 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.

An 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.

Higgins 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.

Six 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.

The 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 force.

"They 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."

Markovic 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."

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