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Crown appeals acquittal of Toronto cop

|Written By Jennifer McPhee

The Crown last week sought a new trial in a case involving a senior Toronto drug squad detective acquitted by Ontario Court Justice Bruce Young in 2005 of assaulting a 50-year-old suspect in custody.

It’s believed to be the first time the Crown has appealed an acquittal of a police officer charged with a crime that allegedly occurred on duty. As of press time, the hearing was continuing before Superior Court Justice Frank Caputo.

“Virtually every single conclusion the judge reaches is illogical or palpably specious,” Crown lawyer John McInnes told Caputo.

The trial judge erred in his approach to deciding issues of the credibility of witnesses when he acquitted detective Chris Higgins, and “misapprehended the evidence,” which overwhelming pointed to the police officer’s guilt, said McInnes.

If Young did understand the evidence, he failed to provide sufficient reasons to allow for meaningful appellate review, he said.

All these grounds intersect and created an “unreasonable acquittal,” McInnes told the court.

 “The judgment resonates with the sense that the case was foredoomed because of who the alleged victim and other witnesses were and who the accused was. . .” writes McInnes in his factum.

But Higgins’ lawyer, Gary Clewley, tells Law Times that the veteran provincial court judge carefully examined all the case law and evidence in his 65-page transcript of reasons, and applied it.

“You couldn’t read the judgment and not figure out why he got acquitted, which is all that he’s obliged to do,” he says. “What else is he supposed to do?”

The Crown claims Higgins beat Gary Shuparski, a drug addict with about 100 criminal convictions, while alone with him in an interview room at a downtown police station on April 1, 2004.

Higgins delivered a final kick while Shuparski was on the ground in a defensive position, which broke a bone in his left forearm, the Crown alleges.

But the defence says that Shuparski’s arm was broken as he was lawfully subdued during his arrest a few hours earlier at his north-end Toronto apartment.

Medical evidence presented at trial found Shuparski’s injury was consistent with how he described it happening, and that the defence explanation was possible, but unlikely.

Two others arrested that night and waiting outside the interview room testified they heard sounds consistent with a beating, and heard Shuparski yell out that his arm had been broken.

The defence theory is that Shuparski might have been too high to feel the pain in his arm after it was broken at his apartment. However, police reports note his condition as “sober” at the time and evidence at trial was that Shuparski complained about other minor injuries - a cut above his eye and tightness of his handcuffs - on the way to and at the station, but not about his arm until much later that night.

McInnes argues that Young erred by concluding it was “too dangerous to rely on those Crown witnesses about what they saw and heard, especially when the officer denies that anything happened.”

The judge incorrectly held the officer’s denial was somehow relevant to the danger posed by believing Shuparski, says McInnes. “In this case, consideration of this irrelevant factor had the effect of turning the presumption of innocence into an assumption one class of witnesses - police officers - tell the truth such that the credibility of the evidence of another class - the criminal - is logically diminished to the extent that it contradicts the testimony of a police officer,” the factum says.

This error is heightened because Young did not scrutinize Higgins’ evidence, which conflicted with common sense and with other evidence, including testimony from another officer present during the arrest who testified for the defence, writes McInnes.

The Vetrovec principle holds that a judge must give a clear, sharp warning to a jury to consider evidence of unsavoury witnesses critically, and to look for corroboratory evidence before accepting it.

The Kehler case principle states evidence that makes an unsavoury witness more credible or leads one to believe the witness is telling the truth is acceptable as corroboration by a judge or jury.

The Crown argued at trial that the Kehler principle was made out because, even though the witnesses were unsavoury, their evidence hangs together and is also supported by other circumstantial evidence.

One witness in the waiting area, in particular, had no opportunity for collusion because he did not know the others and never saw them again after that night, argues the Crown.

It would be an “astonishing coincidence” for this witness to independently invent a similar story when approached by the Special Investigations Unit weeks later, says the factum.

“The likelihood of [this witness] spontaneously spinning this specific yarn out of whole cloth must be roughly the same as winning the 6/49 lottery two or three times in a row,” writes McInnes.

He also argues Young erred because he should have “understood” small differences in witness’ evidence are “healthy discrepancies that confirm the absence of tainting or collusion.”

Young also misunderstood or failed to give effect to the other pillar of the Crown’s case - that Shuparski’s arm was intact when he arrived at the police station but broken when he left for the hospital, he says, adding the judgment is “almost entirely devoid of analysis” and “legally insufficient” to allow meaningful appellate review.

But Clewley says the judge rejected Crown witnesses’ evidence because of the manner in which it was given, and the various contradictions and other problems. He says the prosecution failed because the judge concluded the Crown’s evidence didn’t hang together, and he chose to accept the officer’s evidence because it didn’t suffer from the same frailties - not because he was a police officer.

“I don’t think it was a question of saying, ‘He’s a cop and they’re a bunch of bandits,’” he says.

Several times, Shuparski told emergency room staff that he was injured during his arrest, which means at his apartment, not later at the station, adds Clewley.

Shuparski is “not some stranger to the system” who doesn’t know the difference between arrest and custody, he says.

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