Charge stayed as judge casts doubt on police testimony

As concerns over the reliability of police testimony on the witness stand mount, an Ontario Court of Justice judge has found two officers used excessive force during the arrest of an accused impaired driver after rejecting their version of events of how the 60-year-old man sustained injuries in October 2010.

On Nov. 9, Justice Gregory Campbell stayed the prosecution of the driver, Bruce Richard, in order to remedy a breach of his right to personal safety.

Campbell said the officers’ account of the events were “inconsistent” and unrealistic. The judge also ruled that a missing part of a DVD recording, which would have showed an exchange between an officer and the accused, was a loss of significant evidence that wasn’t adequately explained.

Richard, a truck driver, was driving on the E.C. Row Expressway in the Windsor, Ont., area on the evening of Oct. 22, 2010, when he nodded off and drove through a barrier set up to detour traffic. He admitted to drinking three or four beers with friends before getting into his truck.

The police officers, identified only as constables Sonier and Polachuk in court documents, said Richard fell “awkwardly” from his truck once they approached him. They said he fell to the ground as they tried to stop him from falling.

The officers added that his injuries, including a sore leg and shoulders, an abrasion to the face, and a bump on the forehead, could also have occurred when they put their knees on his shoulder and leg to stop a “flailing” Richard from standing up after being told to stay on the ground.

Richard also urinated on himself during the attack he described.

Toronto criminal lawyer Adam Weisberg says the case is an example of suspected police dishonesty under oath that prosecutors are required to report according to a new policy that will come into effect before the end of the year.

The policy, which followed a Toronto Star investigation into police perjury in court, requires Crown attorneys to report to their supervisors if a judge has found officers lied in court.

“This is the case where if I were the Crown attorney, I’d definitely consider reporting it and allow the police an opportunity to investigate if there was in fact police perjury,” says Weisberg, a certified specialist in criminal law who has dealt with police brutality cases.

“Most police officers are good people that are doing their best to be honest and forthright. The difficult thing is that there are always going to be bad apples,” he says.

Ironically, both officers told the court that Richard was apologetic and talking slowly during his arrest. Sonier even went as far as calling the accused a “charming” individual, something the judge said couldn’t be reconciled with the way the officers described his resistance to arrest.

“I have no doubt that Mr. Richard was co-operative from his initial encounter with officer Sonier through to the time of his release from custody,” Campbell said in his ruling.

“It’s difficult for me to understand how Mr. Richard could have received injury to his upper right thigh . . . from apparent pressure attributable to officer Sonier’s knee to Mr. Richard’s left shoulder and officer Polachuk’s knee on Mr. Richard’s right leg.

“The officers were at best unclear and at least inconsistent with the location and extent of at least some of the injuries sustained.”

The judge referred to the officers’ “collective inability to describe the fall from the pickup truck with any detail” as one of the reasons for rejecting their story.

“They were standing right there, next to him and touching him. Both officers apparently tried to stop him from falling, but somehow couldn’t. There is no explanation.”

Sonier, according to the ruling, said he reached into Richard’s pickup truck in order to turn off the ignition after the accused failed to do so.

But Richard said that wasn’t true, adding he didn’t fall while getting out of the vehicle and obeyed when told to move far away from it.

According to Richard’s version of events, Sonier went to the truck to retrieve a wallet and, upon his return, told him to kneel down. He was bending down when “suddenly, Sonier grabbed one arm and immediately struck him with a knee to his right thigh,” the court heard.

Richard also told the court Polachuk grabbed his other arm as he was forced to the ground. The accused, a former horse racer, said the blow was “worse than having been kicked by a horse.”

Once at police headquarters, the accused was taken into the breath room for an examination. Part of a DVD recording presented to the court shows Sonier, who’s also a breathalyzer technician, asking Richard, “Did you wet yourself earlier?”

Richard replied, “When you guys were knocking me down, yeah.”

When Richard mentioned wiping blood off his head because of “whatever you guys did,” Sonier told him, “We’ll talk about that in a second.” But the court never heard what was said during the talk that followed because the footage ends shortly before Sonier took Richard’s second breath sample.

When asked what happened to the rest of the tape, Sonier said the equipment might have malfunctioned and that he figured it was because it was new.

But the officer in charge of equipment in the breath room told the court that he wasn’t told about the missing footage until February 2011 and that the device in question was a year old by the time Richard walked in the room.

Richard could only remember that Sonier was “angrier . . . like he was on the street” during the missing half of the recording.

“There is no reason to believe [the] equipment failed to record but for the testimony of officer Sonier, which was, at best, equivocal,” Campbell said.

According to the new policy, if a judge makes a finding that police officers were untruthful or the Crown attorney believes police were dishonest, the prosecutor is required to report the case to a supervising Crown who will decide if there was a deliberate attempt to mislead and then pass the case to a regional officer. The regional officer then reports the case to police to investigate.

A policy that requires reporting alleged police dishonesty is a step in the right direction to ensure public confidence in the system, says Weisberg. “Will it solve [police perjury]? Likely not,” he adds. “Most people who hit the box on the witness stand and are determined to lie believe that they wont get caught.”

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