Defence lawyers ask for cops’ disciplinary records in court

From the Edmonton Sun

By ANDREW HANON

If a police officer lies in his personal life, can he be trusted in court?

That’s the question at the heart of a legal battle brewing between law enforcement and defence lawyers, who want to be able to use arresting officers’ internal disciplinary records against them in the courtroom.

But police departments and cops’ unions across the country are resisting, arguing that if accused criminals get unfettered access to the files, the officers’ integrity will end up on trial, instead of the suspect.

"They could start introducing irrelevant pieces of a (police) member’s past," said Sgt. Tony Simioni, president of the Edmonton Police Association and board member of the Canadian Police Association.

In January, the Supreme Court of Canada ruled that police departments must turn over to Crown prosecutors all disciplinary records of officers involved in the investigation of an accused.

PRIVACY ISSUE

However, in order to protect the privacy of individual cops, the Crown is required to reveal only "relevant" information to the accused’s lawyers.

That excludes any unproven allegations, investigations still in progress and convictions under the Police Act deemed immaterial to the case at hand.

Alberta Justice spokesman Jay O’Neill said his department is working "with all police agencies in the province to ensure that this information is provided in accordance with this ruling."

Simioni compared the new rules to the so-called rape shield law, which forbids lawyers defending accused rapists from dredging up the victims’ sexual pasts.

"Before the rape shield laws, the victim’s character was called into question. It got ridiculous," he explained. "We have to be careful that this doesn’t degenerate into that, either."

But the current system isn’t good enough for defence lawyers like Edmonton’s Tom Engel, who argue that they should be able to see everything and determine for themselves whether they should try to have it admitted in a trial.

"I do a lot of cases where my clients complain that excessive force has been used on them," he explained.

"I want to know if that officer has been the subject of other excessive-force complaints. It shows a propensity to be violent. It’s very powerful evidence."

Engel said he’s continuing to push the boundary. He said he recently convinced a judge to demand a cop’s disciplinary file so he could review it himself and decide what the defence could see.

Engel said while the judge didn’t hand anything over to him, just getting him to make a ruling is a step in the right direction.

The issue came up yesterday during an internal disciplinary hearing for Edmonton cop Const. Sebastien Berube, who has been suspended without pay since 2006 pending the outcome of several cases against him.

Yesterday’s hearing was in connection with a November 2005 collision he was involved in while off-duty.

Berube is accused of threatening to have the other driver charged with operating a motor vehicle without insurance if she didn’t agree to the settlement he proposed.

ACCUSATIONS

He’s also accused of making false statements to police about the amount of damage done to his car.

Engel, Berube’s lawyer, called for the deceit charge over the damage estimate to be tossed due to insufficient evidence.

He also argued that because Berube was off-duty and engaged in a private conversation with an on-duty police officer, he shouldn’t have been charged under the Police Act because it had nothing to do with his duty as a police officer.

But prosecuting lawyer Simon Johnston countered that "the very nature of deceit affects an officer’s ability to perform his duties," especially if he has to testify in court.

Engel contended that under the current rules, a deceit conviction in this case wouldn’t be disclosed to a defence lawyer, anyway.

ANDREW.HANON@SUNMEDIA.CA

http://www.edmontonsun.com/news/2009/07/03/10009686-sun.html

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