Keeping the System Fair
No matter how rare, when it happens, misconduct by agents of the state undermines the integrity of our justice system and erodes public trust. Unmasking police misconduct is incredibly difficult because police services often control most, or all, of the relevant information. Officers may resort to cover-ups, destruction of evidence, and even perjury, to protect themselves. Joel Hechter’s approach to these challenges has been described as relentless: he uses all available tools— such as cross-examination, disclosure applications, and the independent collection of evidence— to expose police misconduct, where it appears.
“The documentary record developed painfully over the course of this application has gradually narrowed the focus to the point where senior members of the investigative team have been painted into corners… Detective Sergeant Arnold’s response… could have resulted in the court being misled had defence counsel not pressed relentlessly for disclosure of police investigative emails.” R. v. MM 2017 ONSC 5245 at paragraphs 267 & 472.
Denial of the Right to Counsel
“… Constable Jenkins clearly attempted to elicit information and evidence from the accused regardless of the fact that the accused exercised his right to speak with a lawyer and Jenkins having agreed to call him one… Given that he had requested an opportunity to speak to counsel, Constable Jenkins should not have asked him direct questions regarding his knowledge of the gun or the ownership of a gun… although the Crown did not propose to proffer the police statement obtained from the accused during the prosecution of this case, it should also be noted that the violation of the accused’s s.10(b) rights also constitutes a serious breach of the accused’s constitutional rights to counsel which must be weighed and considered in the overall context when examining the police conduct… the evidence obtained by the police, namely the firearm, ammunition and drugs seized from the accused’s residence must be excluded pursuant to s. 24(2) of the Charter.” R. v. NP 2012 ONSC 3390 at paragraphs 165-167, 194 & 215.
“I find that the force used by the police in detaining and taking control of the accused was excessive and unreasonable in these circumstances… the use of tasers on the accused was entirely excessive and unwarranted force in the circumstances and as such, I conclude that the manner in which the search was executed was unreasonable… the evidence obtained by the police, namely the firearm, ammunition and drugs seized from the accused’s residence must be excluded pursuant to s. 24(2) of the Charter.” R. v. NP 2012 ONSC 3390 at paragraph 149, 155 & 215.
Non Disclosure, Alteration of Records & Coverups
“This pattern of a lack of disclosure contributes to my conclusion that there has been an attempt in this case to cover up, minimize or reduce attention upon various aspects of problematic police activity which occurred in the course of this investigation… if the senior officers involved were not trying to minimize the existence of or extent and seriousness of Charter-violative conduct, I would have expected them to be much more forthcoming with their evidence. The lack of disclosure and the close relationship between what has only recently been disclosed and Charter-violative conduct smacks of imperfect attempts to cover up or minimize that Charter-violative conduct.” R. v. MM 2017 ONSC 5245 at paragraph 266 – 267
“Not only were the briefing notes altered without recollection or notation that it was done to protect privilege, but I conclude the Action Response, which also revealed the interception and dissemination of privileged material was assigned the number MCM20.110. Staff Sgt. Leach must have removed that document from both his physical and electronic files… I conclude there have been attempts by senior officers to cover up and minimize the nature and extent of the problematic conduct of rank and file investigators.” R. v. MM 2017 ONSC 5245 at paragraphs 263 & 268.
“This is yet another set of circumstances which I find troubling. Something has been added to a briefing note in a manner which had the potential to mislead and did mislead. The disclosure of the surrounding emails, requested by counsel for the applicants in June of 2015, was not provided until this application was underway and only after persistence by defence counsel… I conclude there was a pattern of abuse. There was the repeated negligent violation of Charter rights followed by alteration of the investigative record and a lack of disclosure and misleading comments by the supervising officers. The alteration of the record and the lack of disclosure had the tendency to obfuscate if not completely cover up that Charter violations had occurred.” R. v. MM 2017 ONSC 5245 at paragraphs 306 & 487.
“In my view, given the Crown’s concession that its disclosure was late, and its lack of explanation for the delayed disclosure, the failure to provide timely disclosure of J.S.’s contact information, and the disappearance of J.S., has resulted in a breach of the applicant’s right to make full answer and defence under s. 7 of the Charter.” R. v. RW, 2018 ONSC 1806 at paragraph 54.
“I do not accept the Crown’s argument that Mr. Hechter is seeking perfect disclosure… I am satisfied on a balance of probabilities that the disclosure in this case is not adequate to enable the Applicant to make full answer and defence, and thus violates his rights protected by s. 7 of the Charter.” R. v. MC, 2020 ONSC 4488 at paragraphs 64-65.
Fraud in Obtaining Warrants
“The police sought a telewarrant. They provided misleading and incomplete information to the justice as to their knowledge of the accused and the details of their investigation… the [warrant application] contained untruthful and clearly misleading statements regarding the accused’s alleged drug history, supposedly based on prior police investigation of the accused, which the affiant readily conceded was entirely speculative. Given the intended purpose of the search warrant, the affiant knew that the justice would place significant reliance on the alleged connection of the accused to drug dealing or use in determining whether or not to grant the search warrant.” R. v. NP 2012 ONSC 3390 at paragraphs 182, 186-187.
“The dishonest police conduct at the time thus had the effect of misleading a justice in the preauthorization process.” R. v. MM 2017 ONSC 5245 at paragraph 449.
“Here the police lied about how Cst. Lowe’s error was handled. While I was not able to conclude precisely who was not telling the truth, the respondent concedes that one or more of the three officers likely provided untruthful testimony. No matter who that may have been, it is unacceptable conduct inconsistent with the proper administration of justice… The in-court prevarication is a criminal act and amounts to a cover-up.” R. v. MM 2017 ONSC 5245 at paragraph 449.
“There is an element of dishonesty involved in wilful breaches of the Charter. In this case, that is compounded by testimonial dishonesty. Officers Lumsden and Charron falsely disavowed knowledge of the pre-stop meeting. All four officers testified about the headlight being out and were less than forthright about their observations of cannabis in the SUV. This decided lack of candor increases the strength of the arguments to exclude in this case… In this instance, together with the dishonesty in deliberately violating what were known to be Charter requirements, the dishonest testimony in court was for the purpose of concealing these Charter violations. It is not every case in which there are knowing and intentional breaches of the Charter that the police then attempt to conceal or minimize based on dishonest testimony on the witness stand… Given the seriousness of the two breaches and the misleading testimony to cover them up, there is a powerful obligation to disassociate our community from the violations of the Charter committed by the police in this case.” R. v. J.S. 2023 ONSC 5010 at paragraphs 84-87.
“Detective Sergeant Arnold was negligent in understanding and complying with the requirements of s. 8 of the Charter. She was also grossly negligent, and probably reckless, in responding to Crown counsel’s email as she did. In the context of her role as the primary investigator responsible for the supervision of many other officers this has significant implications in terms of the s. 24(2) analysis.” R. v. MM 2017 ONSC 5245 at paragraph 347.