The Relevance Of A Police Officer's Disciplinary History To Your Trial - A "How To"

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Have you ever been left with the feeling that the officer who arrested you didn’t exactly fit the “poster-boy” description of that honest, noble, cop who only acts in good faith? Did the officer “over react” when you asked him why you were being arrested, prompting him to use excessive force, or did he write something in his notes that you’re sure isn’t true? These scenarios make up just a few examples of what “police misconduct” may be defined as. Ascertaining whether or not an arresting or investigating officer in your case has prior acts of misconduct may help strengthen your case by either showing the officer has committed this sort of behaviour in the past, and thus, is the type of person who would do it, or by casting a general, negative shadow over the officer’s credibility as a result of prior acts of misconduct.

The Police’s Duty to Disclose Misconduct to the Crown Attorney

The Supreme Court issued a ruling back in 2009 which has the effect of requiring the police to hand over records regarding the discipline, misconduct and criminal convictions of its officers as part of its disclosure obligation to the defence in criminal proceedings. The ruling in R. v. McNeil is widely interpreted as having advanced the law surrounding the transparency and accountability of police officers by routinely opening up police records for inspection. The police’s duty to disclose all acts of misconduct by one of its members is, however, made directly to the Crown Attorney and not to you or your defence counsel. Moreover, not all acts that may fall under the definition of “discipline, misconduct or criminal convictions” are required to be disclosed. The Ferguson Report, which dealt specifically with the Toronto Police Services, drafted a number of recommendations relating to when disclosure of police records should be compulsory, which the Supreme Court in McNeil later adopted. The Report stated that automatic disclosure should be made regarding acts of misconduct by a member of the Toronto Police Service who may be a witness or who was otherwise involved in a case before the court when any of the following exist:

1. Any conviction or finding of guilt under the Criminal Code or under the Controlled Drugs and Substances Act [for which a pardon has not been granted].
2. Any outstanding charges under the Criminal Code or the Controlled Drugs and Substances Act.
3. Any conviction or finding of guilt under any other federal or provincial statute.
4. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
5. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

The Crown Attorney’s Duty to Disclose Officer Misconduct to You

As an accused person, your primary (and most likely, only) avenue of disclosure in obtaining these records is not through the police directly, but rather, through the Crown Attorney’s Office. The Crown has a positive duty to disclose to you all relevant information pertaining to your case that is in its possession. This duty to disclose is ongoing and lasts from the time when the initial charge is laid, until your matter comes to some sort of conclusion. Upon receiving any evidence of officer misconduct from the police, the Crown act as "gate-keeper" by sorting out what parts of this material, if any, should be turned over to you in compliance with its obligation of disclosure. It is this “gate-keeping” function of the Crown, and its necessary use of discretion, which is the subject of most disagreements between the Crown and the defence. The Crown may view the prior acts of officer misconduct as completely irrelevant to the charges you’re facing. The defence may have a much different view, as is often the case.

Determining Relevance – Law

Thankfully, the Crown’s assessment of what is and is not relevant is one that is reviewable by a Court. The Crown bears the burden of convincing the court that the prior acts of misconduct are “clearly irrelevant”. In the legal world, that sort of standard is considered quite high, and therefore, the question of relevance will be front and centre in the proceedings. Before embarking on the relevance assessment, however, the court must bear in mind two key legal-assumptions.

• The first is that the material in possession of the Crown is assumed to be relevant to the accused's case. The logic behind that is if the material were not relevant, then the Crown would not have obtained possession of it.
• The second assumption is that material in the Crown’s possession will likely comprise the case against the accused – whether or not it eventually is. Bearing those two assumptions in mind, the next step for the court will be to assess the true relevancy of the targeted record in the case against the accused.

For all practical purposes, the outcome of the relevancy assessment will usually be largely determinative of the production issue, since the accused's right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production. However, if the court is satisfied that the documents are clearly irrelevant, there is no basis for compelling production to the accused, and the application can be summarily dismissed.

Determining Relevance – Application

As a general rule, when the police misconduct in question concerns the same incident that forms the subject-matter of the charge against you, disclosure of information concerning police disciplinary action taken in respect of that misconduct is rather self-evident. For example, if you were “roughed-up” by a cop as he arrested you, and you’ve subsequently filed a complaint with the Special Investigations Unit, materials from their investigation into the misconduct are presumptively useable at your trial. Where the misconduct of the officer is not directly related to the investigation against you, it may nonetheless be relevant to the accused's case, in which case it should also be disclosed. Generally speaking, the more closely related your charge and the officer’s prior acts of misconduct are, the stronger your argument will be for a production order. Thus, assessing relevance will always be a contextually–framed analysis, and an order to disclose will be founded on the particular facts of your case.

Relevance and the Issue of Credibility

Unfortunately, the courts have been unwilling to issue a blanket order of disclosure based solely on an argument that if the officer-in-question intends to testify at your trial, his credibility will always be an issue, and as such, any findings of misconduct ought to be disclosed. The argument in favour of this analysis is that had it been a civilian witness who intended to testify, his past convictions would be disclosed and could be put to him during his testimony, which may ultimately affect his credibility. The court in R v. Bell, however, held the following:

"Does McNeil compel routine disclosure here and in all cases as part of first party disclosure of all materials in the possession of the Crown, including the police, relating to the disciplinary/criminal histories of investigating officers involved in any prosecution, because their credibility as witnesses is always in issue. In my view, that interpretation of McNeil casts the disclosure net too widely."

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit www.ghobriallaw.ca.

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