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Appeal court handcuffs defence bar

Police witnesses can no longer be confronted with previous judicial findings that they lied

An Ontario Court of Appeal decision has left defence lawyers unable to confront police witnesses with judicial findings that they lied in previous trials.

The court ruled earlier this year that lawyers cannot bring up the fact that previous judges found an officer to be lying or unworthy of belief. The decision reversed a 1997 ruling that opened the door to such evidence.

"The defence bar is certainly disappointed we can't take this case any further," said Alan Gold, a lawyer for Mohammed Ghorvei, who was convicted of heroin trafficking in 1994. "I can't think of any better way to get at the truth than through a previous judge's finding that an officer was not credible."

The ruling became final when the period in which Mr. Ghorvei could launch an appeal ended recently. The Ontario Legal Aid Plan refused to provide him with funds to pursue his case to the Supreme Court of Canada, on the basis that he had already served his prison sentence.

The Ghorvei decision came as a blow to a database at the Criminal Lawyers Association. The CLA has filed and cross-referenced various cases involving police testimony to provide members with the names of individual officers whose evidence judges have rejected.

Edward Sapiano, the lawyer who created the database, said yesterday that his years of work on it convinced him that "every day, somewhere in Toronto, some police officer gives perjured testimony."

Frank Addario, another Toronto defence lawyer, said he is concerned that the Ghorvei ruling will have implications for more than just the police. He said it will probably also prevent the use of previous judicial findings that reflect negatively on any expert witness.

Mr. Addario gave the example of a forensic scientist whose testimony is soundly rejected in one case. He said the Ghorvei ruling means that finding could not be brought before the judge or jury in other cases.

"We cannot afford to ignore evidence like this," Mr. Addario said. "As the law now stands, this means nine judges in nine different cases can disbelieve a police officer, but the tenth judge will be blissfully unaware of his track record."

The 1997 Court of Appeal decision opening the door to evidence of multiple police lies was Regina v. Malabre. The court said findings of credibility against a police officer could be used to attack him in later trials, provided that the officer was central to the case and that the finding of incredibility was "a clear and express finding."

The Ghorvei decision involved an officer whose truthfulness had been been questioned by three lower-court judges -- including one who called the officer "a compulsive liar."

However, the appeal court said an officer cannot be confronted with a judicial finding adverse to his credibility unless he or she has been charged and convicted of perjury, or police authorities have made a finding of misconduct.

Mr. Gold argued that by looking at evidence of consistently false police testimony, courts in England and the U.S. have, over time, been able to root out serious injustices.

"If you were a judge trying a case, wouldn't you want to know the person before you is a liar?" he asked. "It is a very disappointing ruling."

Mr. Sapiano said he undertook the CLA database project a few years ago after an incident where a police officer whom the judge did not believe showed up a few weeks later as a witness in another of Mr. Sapiano's trials.

"If police can collect all this information on us -- which they do -- I thought: Why can't we do it to them?" Mr. Sapiano said.

Some excerpts compiled by defence lawyer Edward Sapiano of judicial findings about the credibility of Toronto police witnesses:

"Crown counsel has also been exposed to the nightmare of every counsel -- of having his witness shown in court to be telling a lie, or of giving contradictory evidence of which counsel is completely unaware." -- Madam Justice Donna Haley of the Ontario Court (General Division), in Regina v. Montgomery and Stewart.

"Shocking though it may be, I find the accused to be a more credible witness than the police officers in this case. When I say shocking, it may not shock other people -- and I may be more naive than a lot of other people -- but the evidence of the police officers in this case is quite alarming." -- Judge David Fairgrieve of the Ontario Court (Provincial Division), in Regina v. Stokes.

"The whole Crown case, in my view, depends upon whether or not [the officer] can be believed or if his evidence on a balance of probabilities can be believed . . . In my view, it cannot." -- Mr. Justice Arthur Whealy of the Ontario Court (General Division), in Regina v. Ewart and Fraser.

"I have seen the witnesses in the witness box, and observed their demeanour and the manner in which they gave their evidence, and I am not convinced at all by the evidence given by the police officers. The accused gave his evidence in a straightforward manner. I believe and accept his story, and reject the evidence of the police officers." -- Judge Maurice Charles of the Ontario Court (Provincial Division), in Regina v. Anderson.