injusticebusters logo

Punish these bullies or they will never change!

Police Accountability

Law bears down on police conduct

With every successful civil suit, bringing the enforcers to account grows increasingly less futile, writes justice reporter

The police royally blew it when they rousted Dylan Chochla out of his bed in a University of Western Ontario dormitory last year, drove him 200 kilometres in handcuffs and threw him in the Don Jail.

Their first mistake was misidentification -- as the Crown would eventually concede. Besides being a foot taller than the arson suspect they were seeking, Mr. Chochla, 19, could prove he had been in a school gym class at the time of the offence.

Their second mistake amounted to sheer bad luck. Mr. Chochla's father happened to be Morris Chochla -- a veteran Toronto litigator whose practice concentrates on defending professionals caught up in errors and omissions.

Ooops.

Not long ago, the Chochla family might have had little recourse. But the growing success of lawsuits against the police has granted them the luxury of seriously considering a claim for negligent investigation.

"The issue is: Once allegations are made, do the police have a legal obligation to conduct an investigation in a timely, proper and professional manner prior to throwing students in jail?" Mr. Chochla asks.

"I would hope that our legal system and, for that matter, our society, would insist on it."

Taking on the police is becoming a modest growth industry. With every successful lawsuit, the civil route beckons more invitingly to those who allege they have been wrongfully arrested, imprisoned, strip-searched or convicted.

Having doggedly carved out a career making the police accountable, Toronto lawyer Barry Swadron is seeing the change. "I've never been deluged with so many calls from people complaining about police abuse, excessive force, wrongful arrest -- you name it," he says. "Police officers are no longer invincible."

A decade or two ago, a lawyer was more likely to secure a Supreme Court appointment than to successfully challenge the law enforcement establishment.

Police lawyers would go to the wall rather than settle, and judges and juries were notoriously sceptical.

In addition, the threat of paying a massive legal bill -- plus costs -- posed no small deterrent to would-be plaintiffs.

While there are obvious public policy reasons to shield the police from nuisance suits, erecting them a legally impregnable fortress is equally shortsighted.

The point was underlined a few months ago when Mr. Swadron won a momentous victory.

The Toronto Police Association folded in mid-trial, paying big money to a Thomas Kerr, a homeless man who alleged he had been beaten up.

Mr. Swadron balked at inserting a gag order into the settlement -- with predictable results. "People are coming out of the woodwork," he says. "There are 10 calls like this a day. It's all I can do to return them."

Some plaintiffs are also looking to litigation as a useful device for advancing social policy, allowing them a vehicle to attack issues such as racial profiling or intrusive searches.

"I certainly think the area is emerging as one of the more effective ways of changing police conduct," remarked lawyer Louis Sokolov, who devotes half of his practice to police litigation.

Why is the civil system more accessible than it used to be? For one thing, contingency fees have given hope to those who had no prayer of launching court action in the past.

A parade of wrongful convictions in recent years has also served to alert judges and jurors to the very genuine consequences of reckless or overzealous policing. Plaintiffs' lawyer no longer come off sounding like left-wing escapees from the Chicago Seven defence team.

In addition, several inquiries into miscarriages have created a framework that courts can use to assess proper police practice and misconduct. In particular, Manitoba's Sophonow inquiry involved an intricate analysis of factors involved in assessing damages -- ranging from time spent in custody to effect on one's reputation.

"These have become the standard of care," Mr. Sokolov says. "They hold police to the sort of standard other professions are held to."

Malicious prosecution has long been a tool of choice for plaintiffs, albeit one that is very difficult to prove. However, Mr. Swadron can rhyme off an impressive list of alternatives for framing a police action, including: assault; battery; abuse of powers; negligence; intentional infliction of mental anguish; unlawful search; false imprisonment; breach of fiduciary duties and various breaches of Charter rights.

Lawyers have also tried probing at the borders. Toronto lawyer Michael McQuade, for instance, is currently suing several officers and a justice of the peace for a client who was plucked out of his workplace in 1998, strip-searched and thrown in the Don Jail for six days.

Mr. McQuade's client, John Pispidikis, was released only after the Crown conceded that a JP had ticked the wrong box on a standard form. Instead of giving Mr. Pispidikis a year to pay a $5,000 fine, it authorized his incarceration for a year.

Other evolving torts allege that charges were laid on unacceptably weak evidence and that officers were manifestly unfit for employment by a police force.

Mr. Sokolov said one area especially ripe for action involves the use of flimsy evidence to deny an accused person bail. Police frequently insert misleading material to inflate their case, he said -- with dire consequences for the accused.

Lawyer Julian Falconer urges lawyers to let their imagination roam when they draft their claims. "Civil litigation is an untapped resource, and citizens have to take it into their own hands," he said in a recent speech.

Mr. Falconer has taken his own advice, attempting to open up the tort of "abuse of public office" in a case involving Manish Odhavji -- a Toronto man shot while escaping the scene of a bank robbery. The Supreme Court has reserved its ruling after recently hearing the Odhavji case.

Plaintiffs are finding that provisions related to discovery and the production of relevant documents are an enormous boon, typically forcing police defendants to offer far more than would be disclosed in a criminal proceeding.

"We know there are many secrets -- and you would not believe how effective a civil litigation judge can be in getting them out," Mr. Falconer says.

One of the most dramatic consequences of all this activity is seen during out-of-court discussions. The real possibility of losing has made police more willing to consider settling.

Has police litigation become a hayride for plaintiffs? Hardly. It costs a bundle, necessitates an exhausting search for evidence and a drawn-out battle with skilled, well-paid counsel on the other side.

Nor should it become too easy. However, if doctors, engineers or business people can be called to account for making mistakes that devastate the lives of others, police must also be within reach of the law.

"When you are up against the police, the fight is long and hard and complicated," Mr. Swadron sums up.

But no longer is it an exercise in futility.