Thomas Kerr and his lawyers told a packed news conference they feel vindicated. Even though there's been no admission of any guilt in the case, Kerr says it's a victory for others on the street.
"It's for everyone who is homeless. I figure they thrive on the weak and you've got to stand your ground. The truth did come out. I fought this for many years and I stuck to my guns. I know what happened that night. I was there and that's the bottom line."
Kerr was suing for $750,000, but he's not talking about how much he's won.
He's claimed for six years that he was beaten by a group of Toronto police officers in a revenge attack for an incident where Kerr broke an officer's arm.
The lawyer for the police officers says the settlement is not an admission they did anything wrong. Gary Clewley says the officers decided to settle because the case was getting too expensive.
"No one is conceding anything happened here. This thing was settled because the costs were greater than anyone could have anticipated and there is no end in sight," he said.
The settlement comes just before a crucial witness was supposed to testify. Craig Bromell, one of the accused officers and now the head of the police union, was going to be called to talk about the evening in question. The deal means none of that testimony will be heard.
Kerr will now be paid monthly sums from a trust fund, rather than the lump sum he wanted. He'd hoped his settlement might buy him a cottage on a lake.
Kerr's lawyer says the monthly payment arrangement means Kerr, who is still struggling with alcoholism, won't blow the settlement. He'll now have financial support for the rest of his life.
So, figure this: A homeless man who has brought a civil suit against nine Toronto police officers for allegedly beating him up is now - and there's no other way to put this - to be minded in court by ... a Toronto police officer.
And although Thomas Kerr is known to hate cops, to resent even the very sight of a police uniform, the constable on Kerr duty as of today at the University Ave. courtroom will be ... in uniform.
Presumably, he or she won't be from 51 Division. That would be a bit much.
The order was made yesterday by Mr. Justice Paul Rivard, after complaints about Kerr's behaviour from the lawyer representing the 51/9 - the officers from 51 Division who are the respondents, along with the police services board, in the $750,000 civil action. "He appears to be intoxicated," Gary Clewley told Rivard following the morning break. "He's acting in an aggressive manner, calling out unprintable names."
Rivard did not personally witness such conduct, which allegedly occurred outside the courtroom. Nor would he agree to a request from Kerr's lawyer, Barry Swadron, to hold a voir dire - a trial within a trial - in order to determine whether Kerr was in fact drunk in court.
But Rivard, pointing out that he now had two conflicting allegations of Kerr's condition as part of the record - Clewley's accusation, Swadron's denial - was taking no chances, nor inferences. "They're not issues that are going to cloud the issue or impact on my judgment of this case," Rivard said.
Several reporters had overheard Kerr mumbling comments toward some of the named officers after the morning break. The plaintiff quickly went from sotto voce to vive voce as he derided the officers while a friend tried to calm him. The one-way exchange continued as Kerr got on the escalator.
Kerr did not return to the courtroom after the break and thus was not present when Rivard issued his order. His friend, a woman who works with the Out of the Cold program for Toronto's homeless, told Rivard that Kerr had gone home.
Swadron, who'd not spoken directly to Kerr yesterday, told Rivard that his client "gets agitated from time to time, he gets upset with the testimony he's hearing because he doesn't agree with it." But while that may be so, Rivard was of the opinion that a constable in the courtroom might dissuade Kerr from making any abusive remarks toward the officers, or even threatening them, although no one had suggested that a threat had been made.
Swadron took a dim view of the development. "Frankly, he gets very agitated by the sight of police." Rivard, however, stuck to the argument that a uniformed constable would "deter" any unacceptable behaviour on Kerr's part. Countered Swadron: "I don't know if that's true on this occasion."
It should be noted that Kerr has been violent with officers in the past, at one point, in 1996, breaking the arm of a cop, Constable Gordon McLeod. McLeod is one of the officers named in the suit, wherein Kerr claims he was taken to an isolated spot near Cherry Beach and pummelled by cops, this in retribution for having broken McLeod's arm two weeks earlier. (Court has heard that McLeod's arm was broken after he dove to tackle Kerr following a confrontation on a movie set.)
There's no way of knowing if Kerr was indeed drunk in court yesterday morning, which is surely not against the law, per se. But as Kerr told court himself, during his time in the witness stand, he is a colossal drunkard; he drinks all the time, morning, noon and night. But during the many weeks of the trial thus far, Kerr - a street person who sleeps on the streets, in hostels and more recently, apparently, in his mother's Scarborough home - has somehow managed to get himself to court every morning, dressed in suit and tie, neat and clean, and outwardly composed.
He's missed only a couple of days when he was ill with "cramps."
It's no easy thing, for a chronic souse, to stay on the wagon for so long, or even to curtail his prodigious drinking. That's one of the exceptional characteristics of this legal exercise. Kerr's essential nature - as both street person and sot, with all the blows to his credibility that ensue from that - rendered his entire case remarkable from the start. Few ever believed the case would come to trial. Indeed, Kerr's reputation - he's also been proven to lie on countless occasions and admits he invented another assault by police, involving 51 Division officers - went a long way toward discouraging the crown attorney's office from proceeding with criminal charges against the 51/9. They were not charged criminally or under the Police Services Act following a lengthy internal affairs investigation.
Yet somehow, the case has ended up in court, with legal aid footing Kerr's bill, a rarity for civil actions.
The second of two officers named in the suit, Constable Albert Coombs, took the stand yesterday, called by Clewley.
Clewley wasted no time getting to the heart of the matter. His first question: "Did you participate in an assault on Thomas Kerr?"
Coombs: "Absolutely not."
Kerr, of course, was not around to react - in whatever way he might have seen fit.
When homeless Thomas Kerr took the witness stand yesterday, he looked rather different than he had back on Friday afternoon.
The left side of his face was swollen, pushing down the edge of his wide mouth. There were fresh bruises around his eye.
He looked, in fact, closer to the image as portrayed in photographs, now six years old, taken by Internal Affairs investigators just a day after the beating Kerr alleges he suffered at the hands of retributive police officers from 51 Division, D platoon. He looked, further, like the oft-injured and frequently battered street person - a rounder and ruffian, by his own admission, a man prone to brawling when drunk, which is most of the time - so familiar to many downtown beat cops and charitable agencies.
It wasn't necessary for police lawyer Gary Clewley to draw out the obvious, though he did, which was perfectly reasonable as part of his cross-examination parry and thrust: That Kerr had been in another fight over the weekend.
"When you get drunk, you sometimes get violent, don't you?" "Yes sir."
"You were in one, by the looks of it, recently, weren't you?
"I bet you were in one on the weekend.''
Kerr, who is suing nine officers and the Toronto police board for $750,000, is a textbook vagrant, a mendicant, a product of the streets. He's lived on them since he was 14, 15 years old, and is now 39. He survives by his wits, by charity, by the commission of petty crimes, and on a monthly $873 disability pension for a bum arm and bad back dating back to the time "I got thrown through a plate glass window" by "just some thugs." He drinks in the morning, he drinks in the afternoon, he drinks at night. Beer, mostly, but also wine and, when he can get it, "the hard stuff." He takes drugs: marijuana, cocaine, heroin, speed, LSD. "But I prefer my alcohol."
He claims to have been a boozer since the age of 9. His mother lives in Toronto - he stayed with her on Sunday night. Saturday, he slept at a downtown shelter. There's a common-law wife in the picture - they've been together for nine years, notwithstanding "a few breakups" - but no kids. He works occasionally, mostly as a labourer. He's trained as a welder, but he's inevitably fired from those jobs, on account of the drinking.
Not uncommonly for drunkards, he has blackouts, lots of blackouts. Can't remember what he's done, where he's been, what's been done to him.
Much of the time he's in a drunken fog, with little penetrating the miasma of alcohol.
Thus, Kerr has almost no recollection of an incident that occurred on Aug. 9, 1996, a full 12 days before the alleged police beating he says took place at a secluded lot off Cherry St. But he didn't dispute the facts as put to him by Clewley: That he'd been "drunk as a skunk," said Clewley, when he began harassing a woman on a film shoot, that he then began banging on the hood of a car, that he - unprovoked - attacked a police officer in uniform (this would have been Constable Gord McLeod, one of the officers named in his civil suit), breaking the officer's arm.
"Yeah, that's true," agreed Kerr, though he clearly had no recollection of those events himself, which Clewley also pointed out. "You don't know whether it was a woman, a guy or a giraffe," the lawyer charged, referring to the woman Kerr had harassed.
No disagreement there.
Yet Kerr managed, nearly two weeks later, to identify McLeod - then wearing a sling, on his first day back at work - as the officer who I.D'd him to a fellow cop, Constable Albert Coombs, who then allegedly took Kerr from 51 Division, in his cruiser, to the Cherry St. site.
This all gets very complicated and convoluted, not helped at all by Kerr's booze-addled brain, nor by the repeated episodes of arrest and drunkenness, nor by the wild discrepancies in Kerr's various accounts to police and his statements during the earlier discovery phase of this trial.
On Aug. 21, 1996, Kerr was arrested in the morning for throwing a brick through a window. He was processed at 51 and released a couple of hours later. At that point, according to one of his accounts, he set off to see a friend who worked as a cook at a downtown restaurant, in the hopes of getting some money owed him, so that he could buy more alcohol.
In one version of the story, Kerr used the restaurant's washroom facilities to clean himself up. In another version, he never made it to the restaurant at all but was arrested again by two cops - he's also said one cop, in a previous statement ("I do get mixed up sometimes'') - for being drunk in public.
In any event, records show Kerr was brought back to 51, booked, thrown into the drunk tank, and released later that evening. Whereupon, he alleges, Coombs whisked him away to Cherry St.
Under questioning from his own lawyer, Barry Swadron, Kerr said Coombs had offered to drive him home - wherever home might be. Instead, he found himself at the isolated lot, frightened now, and stuck in the back of the cruiser.
"I wasn't handcuffed, but you can't get out from a cop car once they shut the door on you."
From the backseat, Kerr told the court, he saw two other police cars arrive. (He'd previously said three.)
He watched as the officers proceeded to drink - he thought they were imbibing beer - then pull on gloves. At that point, Kerr said, the back door of the cruiser in which he was sitting was flung open and he was kicked on the side of the face, pulled out of the vehicle, forced down against the gravel lot surface "on my hands and knees," punched, kicked and beaten. There were, he said, five cops in uniform doing the beating. (He's previously said there were as many as nine.)
Kerr finally got away, he told the court, limped to Street City on Front St., a homeless shelter, where he asked for help. The fire department arrived first, then an ambulance that transported him to St. Michael's Hospital, where he gave an initial statement to police and took his leave the next morning without consulting staff. Internal Affairs nvestigators finally tracked him down, later, to a cell at 52 Division, because he'd been arrested yet again.
Watching Kerr in the witness box yesterday was ... painful.
He is what he is - a drunk, a wastrel, a violent man with a booze-blurred memory. On cross-examination, he admitted that he's lied to police at various stages of this investigation, that he's exaggerated, that he's fabricated bits to fill in the blanks. But on one point he was dogged and sure: A bunch of police officers beat him up on the night of Aug. 21, 1996.
There is some forensic evidence to support that claim - his fingerprint inside Coombs' cruiser, his blood on another officer's boot, a strand of what's believed to be his hair caught in yet another officer's gunbelt, radio communications from seven of the named officers referring to "The Trailers,'' as the Cherry St. site was commonly known, a wiretapped conversation.
And in a trial that has had no shortage of peculiarities, there is also this: The case will probably not turn on the evidence of a booze-befuddled, self-contradicting, homeless plaintiff.
If he hit the bottle after yesterday's ordeal, Thomas Kerr might take comfort in that.
The man suing nine Toronto police officers for an alleged beating near Cherry Beach has admitted that he later falsely accused other officers of assaulting him, a court was told. In December, 1996, near Queen and Sherbourne Sts., two officers from 51 Division had actually come to Thomas Kerr's rescue when he was assaulted.
But the officers ended up being the focus of a probe by the province's Special Investigations Unit when Kerr said they broke his jaw, court was told.
"You interfered with the careers of two officers who went there to help you," Gary Clewley, the lawyer for the nine officers in the alleged Cherry Beach incident, said to Kerr. He agreed.
"These guys were put on the shelf for something they didn't do, and that's not right," Clewley said to Kerr. Again, he agreed.
The two officers were later cleared. A passing motorist who had witnessed the December, 1996 assault told SIU investigators the officers helped, not hit, Kerr in the incident, about four months after Kerr's original August, 1996 complaint against the nine for the Cherry Beach incident, the court heard.
"This was all made up, every lick of it," Clewley said to Kerr, who was nearly charged with mischief over the December complaint. He admitted it was.
Clewley wanted to know why he did it, and Kerr first answered that he didn't know.
But in later testimony, the 39-year-old homeless man elaborated, saying:
"Yes, it was false, but you have to understand I have no use for them (police) after the incident that happened to me in August. I have no respect for them, sir."
The alleged beating Kerr said he received from the nine officers from 51 Division in August, 1996 prompted the biggest investigation in the history of the city police internal affairs unit, but no charges were ever laid, either criminally or internally under the Police Act.
The decision not to charge the officers was made after three seasoned lawyers read the file and advised the force not to lay charges, the court has heard.
Kerr later sued the nine, with Legal Aid funding his lawyers, Barry Swadron and Nils Riis. The burden of proof in a civil trial is less than a criminal case, where guilt has to be proved beyond a reasonable doubt.
During his two days on the stand, Kerr has admitted to a number of lies, including making up the comments that one of the nine officers supposedly said to him on the night of the assault.
That prompted Clewley to remark: "The lie-o-meter keeps going off."
Later, Clewley told Kerr: "You play with the truth. You commit an assault on the truth," but Kerr denied that.
Kerr also acknowledged in his testimony that he made a second false allegation against police officers from 51 Division, this one about a month after his original complaint in August.
"Why make a false complaint?" Clewley asked Kerr, who was an alcoholic at age 9 and the son of a biker with Satan's Choice.
Kerr agreed with Clewley that he was "mad at the world."
There was an apparent tampering with evidence being collected by investigators against nine Toronto police officers accused of beating up a homeless man, a court has heard.
Soon after Thomas Kerr accused the 51 Division officers of assaulting him as payback for breaking a police officer's arm, detectives sealed the clothing lockers of the officers, the trial was told yesterday.
But about four hours after the lockers had been taped shut and padlocked following the Aug. 21, 1996 incident, detectives noticed one of the locker doors in the basement of the station was damaged, Detective Frank Skubic testified.
"It appeared to me it had been forced open," Skubic said about the locker belonging to Constable Paul Rubbini, one of the nine under investigation, among them Craig Bromell, who would go on to become head of the police union.
Skubic told Barry Swadron, Kerr's lawyer, that the door had been pried back enough so that there was a space between the door and the frame.
In an agreed statement of facts presented to the civil trial, in which Kerr is suing the officers for $750,000, "it is unknown if evidence was removed from the clothing locker," a document stated.
A hinge on that locker was also loose, "separated from the fixed part of the post," Skubic explained to Mr. Justice Paul Rivard in the Superior Court of Justice trial by judge alone.
Skubic also told Swadron that the police seal on several other lockers had been "spliced open," but the lockers were not otherwise touched.
Skubic, then a detective at 51 Division and now with the homicide squad, had been assigned to investigate Kerr's accusations, telling Swadron it took him about 12 minutes to find the alleged crime scene, where Kerr said he had been beaten. After talking to Kerr at the hospital and getting a description from him of the site, he testified that he and his partner scouted an area south of Front St. and determined Kerr had been talking about a desolate spot near Cherry and Mill Sts.
Five investigators from internal affairs later took over the case from Skubic, but no criminal or internal Police Act charges were ever laid.
The force decided not to lay charges after three veteran lawyers advised there was "no reasonable prospect" of getting a conviction at trial.
But in a civil trial, the burden of proof is less than in a criminal case, where guilt has to be proven beyond a reasonable doubt.
The court heard earlier that no evidence linking the officers to the alleged beating of Kerr was found at the site.
Kerr would go on to give several versions of what happened that night, including one in which he said he was driven to the site in a cruiser after his release from 51 Division on another matter, pulled from the cruiser and beaten.
The trial resumes on Monday.
Vern Smith raises an interesting point: can Thomas Kerr prove his brutalization complaint against Toronto cops ("Excessive force," News, Nov. 23)? His attorneys could present, along with the ample material evidence of police culpability that they already have, evidence of the myth of police professionalism. Most criminologists subscribe to the policing theories of Jerome Skolnick and Richard Ericson, who posit that cops enforce occupational-cultural dictate, using criminal codes as a "residual resource." One American study (Kolts Commission, 1992) quoted a cop admitting that the de facto offence of "contempt of cop" or "rage at defiance of authority" is the basis of all excessive cop force.
Kerr could easily establish that excessive force is a Toronto cop tool. He need only raise the fact that one of the Cherry Beach Eight -- Craig Bromell (president of the Toronto Police Association) -- went to California to learn the legal-political model of policing, as adopted by his union counterpart, the Los Angeles Police Protective League (LAPPL). Both the "take-down" measures inflicted against Judy Sgro and Olivia Chow and the "windshield sticker" outrage were L.A. model practices, which include revenge enforcement against "civilian scumbags" and harassment ("phonejacketing") of honest police officers.
After Bromell's return to Canada, 70 LAPPL cops were terminated during the "Ramparts Scandal", while 28 were arrested and charged for evidence-planting, testimonial perjury and other corruption crimes. The L.A. city council had created unaccountable front-line policing units (CRASH -- Community Resources Against Street Hoodlums) which, perversely indulged, took licence to nationalize private crime. In August, Michael Judge of L.A.'s Public Defenders Office announced that up to "30,000 criminal cases" might have to be reviewed because of the cop scandal. Similarly, the arrest of eight TPA cops earlier this month could affect hundreds of cases and impose millions of dollars in civil liabilities onto the people of Toronto. The blank-cheque policies Bromell has promoted during his ongoing war against the Special Investigations Unit will CRASH just as fast as the union careers of his LAPPL mentors.
Kerr could support his case by quoting from LAPPL's report (Chemerinsky Commission, September 2000) into the CRASH scandal. Therein, L.A. cops admit that a "culture of war" permitted atrocities to be inflicted against social marginals and that the arsenal included the "fabrication of evidence, and perjury." Further, only two weeks ago, L.A. Mayor Richard Riordan signed a "consent decree" allowing federal control of the city police, thereby admitting to a "pattern or practice of excessive force, false arrests and unreasonable searches and seizures." And Kerr could raise issues for trial, filed on Aug. 24, by 41 LAPPL members, who claim that cop dictators enforced a "code of silence, by harassing and retaliating against those officers who reported misconduct."
Of course, Kerr could trump the adversaries by citing Bromell's infamous November 1999 interview with Victor Malarek of the fifth estate, where Toronto's top cop said of his crypto-CRASH model, "You forget everything that you learned in police college. It is us versus them." On that fascistic note, Kerr need only fast forward to Feb. 25, 2000, and repeat the court statement of jailed LAPPL cop Rafael Perez, who said, before being sentenced to five years in prison, "The us-versus-them ethos of the overzealous cops began to consume me.... Used wrongfully it is a power that can bend the will of a man to satisfy a lustful moment. It can open locked bolts to facilitate theft. It can even subvert justice to hand down a lifetime behind bars." On that, Kerr could rest his case. -- R.G. FULTON, HAMILTON