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A Defence lawyer's perspective on issues in criminal law
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Police Reform: Peace, Respect and Trust
Tagged Criminal Defence BlogJuly 9, 2020
ABOVE THE LAW?
I have watched with interest the many videos of police encounters with the public over the last month. Though protests have largely gone silent, the images and the noise of some of the reported encounters that spurred Black Lives Matter (BLM) and the call for police reform continue to play in my mind. I expect the CBC documentary, “Above the Law” – premiering on Sunday, July 11th, 2020 – too further address some of these issues. As reported by the CBC:
“Calgary residents say police brutality tore their lives apart – and the justice system has failed to hold officers accountable”.
The narrative that police are not held accountable has dominated since the death of George Floyd at the knee of police on May 25th, 2020. Since Mr. Floyd’s death, many believe that law enforcement views itself as “above the law”. The casual manner in which Officer Derek Chauvin appears to kneel on Mr. Floyd’s neck while he begged for his life adds credibility to this view.
Having said this, before we broad-smear all police, I think it’s important to be a bit circumspect.
As a former Calgary crown prosecutor and long-time criminal defence lawyer in Alberta who has handled thousands of cases, I am pleased to tell you that in my experience, threatening, abusive or physical encounters with police are, in my opinion, quite rare. As such, I suggest that as part of the frenzied call for police reform and accountability we do not tarnish or underemphasize the work of the many fine officers, who do a great job serving the public on a day-to-day basis. Also, though I am almost always in favour of defunding the Government, I offer a word of caution to those crusading to defund the police; for we need our police.
I do not support defunding the police for the sake of defunding police; rather, my opinion is that we reasonably, intelligently and properly fund them. If reasonably, intelligently and properly funding the police means defunding certain departments, so be it.
THE NEED FOR GOOD POLICE
Canada needs its police; but not just any police -- the right police.
To be sure, any person can dawn a badge and a gun; not every person, however, has what it takes to be a police officer.
Following George Floyd and the flood of reports that followed about brutal and abusive police encounters, the reputation of the police has been seriously (and in many cases appropriately) undermined.
While everybody should be highly concerned about the many violent and unnecessary encounters that we have recently seen, I encourage everybody to avoid the knee-jerk reaction of thinking that every police officer is one-in-the-same as those accused of being abusive, violent or criminal. In other words, have some empathy for police officers; for they are often interacting with members of the public who are not at their best. This includes intoxicated people, aggressive people, people suffering from mental illness, police haters and of course, real criminals. Though I imagine police work is often rewarding, imagine the days when it’s not. Just for a moment, imagine how much patience and kindness is needed to a job that deals with people who are "not at their best", but at their worst.
This is not a job that I could do. Frustration would overwhelm me. But here is the thing: I don’t do this job. Indeed, I recognize that for a variety of reasons, I am not the type of person who could do this job. Recognizing this, I very much respect the people who do this job and do it well. They are truly special people.
Now here comes the “but”.
While I think it’s important that we empathize with police and respect the difficult job they do, I am also of the opinion that we not lose sight of the fact that these folks choose to do this job.
Police are hired and paid by the taxpayer – the very citizens they serve. Therefore, when police interact with a citizen, they are effectively interacting with a person who pays their salary. When police arrest, they are effectively taking control over people who fund that arrest. When police assault, injure or kill, they are effectively hurting the people they are hired to serve and protect.
Baked into the job of “police officer” is a responsibility to the community that cannot be understated. When properly functioning police are, to my mind, more important to our justice system than lawyers and judges – for they work on the frontlines, creating important connections with the community. When police behave in a way that diminishes the trust and respect of the community, there is a negative impact on more than just their reputation, it is on our justice system as a whole.
WITH POWER COMES WITH RESPONSIBILITY
Unlike most other jobs, police are authorized to carry weapons. They have special training and often a kind of physical prowess not possessed by most ordinary citizens. Of course, police have the legal authority to enforce the law and in so doing, may be authorized -- while in the lawful exercise of their duties -- to use force or even deadly force. With all of this in mind, it is not an overstatement to say that police are cloaked with great power, and with power comes responsibility.
Police must be more than a badge, a gun and a uniform. To my mind, the role of a police officer is to be a “peace officer” and as such, keeping the peace requires that unless it is absolutely necessary, police must work to keep the peace at all times. Keeping the peace means that police cannot themselves act in a way that is antithetical to the peace. Accordingly, guarding our peaceful society means that the goal is to have every encounter with the public begin and end with words not weapons; polite and firm communication, not violence. The objective is that all encounters are peaceful.
ALONG CAME THE IPHONE
In the last month the public has been bombarded with video of police arguably harming the public they serve. An iPhone in every hand capable of uploading images for public consumption has arguably exposed serious problems with policing in Canada, the United States and elsewhere.
In Minneapolis, Officer Derek Chauvin kneeled on a man’s neck for upwards of 7 minutes. That man was George Floyd; he died.
In Buffalo, New York, police shoved an elderly gentleman who was protesting George Floyd’s death. That man fell to the ground and suffered a serious head injury.
Across the United States, police were captured on video pepper spraying, assaulting and rubber bulleting protesters.
The article: "Fractured skulls, lost eyes: Police break their own rules when shooting protesters with ‘rubber bullets’", is a gripping report exposing police violence.
Following the death of George Floyd, other incidents began to emerge; both present and historical.
In Kelowna, British Columbia an officer apologized after dragging a girl face first from her suite to an apartment lobby.
At least the officer and the District Commander apologized for the incident. I commend them for doing so.
“I can tell you that when I first saw the video, I was deeply concerned, and I’m very sorry to Ms. Wang for what occurred,” District commander Chief Supt. Brad Haugli, who oversees the RCMP in Southeastern B.C., said Thursday.
“If that was my family member of friend, I would have deep concern and want answers as well.”
In Calgary a woman lodged a complaint, alleging (amongst other things) excessive use of force by police for her treatment while in her own home. The Crown Prosecutor’s Office intervened after the police laid charges.
On July 8th, 2020 the Crown again intervened to drop charges against an Edmonton man apparently assaulted by several police officers during an encounter inside of a convenience store. In this case, the person taking the video questioned a police officer as to why he was “blocking the video”.
In June 2017, Ronnie James Mickasko was allegedly assaulted by police during an arrest. As reported by the CBC, this is how he appeared after the encounter.
Helicopter footage showed an officer apparently striking Mr. Mickasko.
In a 2019 incident in Pelican Narrows, Saskatchewan, an officer, pointing a gun in the direction of not only a person on his knees, with his hands behind his back, but in the direction of a fellow police officer, utters a threat to kill. “I’m going to kill you”, he says. “Shut the fuck up”. The man on his knees was asking to “go home”.
In 2020, Athabasca Chipewyan First Nation Chief Allan Adam was apparently punched and choked by RCMP officers. Chief Adam was charged by the police. The Crown intervened and withdrew the charges.
In 2020 a mother of a teenage boy who was arrested, charged and convicted of assaulting a police officer released to the media police body camera footage capturing much of the incident. She seeks answers.
It is this case that I wish to focus for the balance of this post.
"YOU ARE A PUSSY, LOOK AT YOU"
I understand this teenager was convicted of assaulting a police officer. Of course, I am not privy to all of the evidence presented at trial and as such, must accordingly reserve judgment as to the propriety of the conviction.
“I was very shocked. I actually stormed out of courtroom when I found out he was guilty,” said the [youth’s] mother.
Watching the video, this Calgary criminal lawyer can hardly blame her.
The conduct of the officer speaking in the video is disturbing.
Let’s break the body camera footage down.
At the outset, I was immediately struck by the lack of audio. Why was the audio “off”?
This is an important question because the assault by the teenager is not clearly captured by the video. Accordingly, any words that precipitated the event are important. According to the teenager, his crime was asking the police why they were arresting his friend.
“When I later asked officers why he was being arrested, one of the officers decided to grab a hold of me, without me committing any crimes or doing anything to get arrested in the first place. After that it escalated into 4 police officers on top of me,” said the boy.
It is noteworthy that the teenager is initially standing rather submissively with hands in his pocket. The video then seems to show movement consistent with the teenager suddenly swiping with his left hand at the officer. I suspect this is what the police testified to at trial.
The video, however, is not really clear.
Watching the exchange, it struck me that the teenager may have been telling the truth when he said “one of the officers decided to grab a hold of me”. Why do I say this?
This is so because the video doesn’t show the officer’s right arm. It is possible that that the officer did grab the teenagers left arm, with his right hand, pulling his hand out of pocket. In my experience, police often take umbrage with people standing near them with hands in pockets. This is why the audio of this portion of the exchange is so important.
We should all ask this question: why is the audio “off”?
About 35 seconds into the video the audio is activated. At this point, the teenager is clearly engaged by multiple officers while on the ground. The dialogue is disturbing:
Officer: “You want to put your fucking hands on a cop”.
Teenager: “Ok, ok, ok, ok”.
Officer: “It’s not ok. [indiscernible] “Put your fucking hands”.
Second Officer: “That’s going to snap in a minute”.
Officer: “You going to turn on your belly?”
Teenager: “Yea, ok”.
Officer: “Fucking asshole”.
Teenager: “Ok, ok. I’m cool, I’m cool”.
Officer: “You are a pussy, look at you”.
Teenager: “I’m cool. I promise man. I’m chill”.
Officer: “Going to put your fucking hands on me?”.
Teenager: “Ok, ok…”.
Officer: “Fucking pussy”.
The teenager is then physically escorted to a police vehicle. As he nears the door, it appears that the officer then, charitably speaking, pushes the teens head into the door. After the teenager gets into the car, the officer says: “pussy, look at you”, followed by “what a fucking pussy”.
After watching this video, I was left with a number of wicked, questionable questions. They are rhetorical.
- Who used inappropriate language throughout the encounter; the officer or the teenager?
- Whose tone of voice was aggressive throughout the encounter; the officer or the teenager?
- Who got injured during the encounter; the officer or the teenager?
- Who assaulted who after the teenager was handcuffed and in custody; the officer or the teenager?
- Who continued to use expletives after the handcuffed teenager was contained in the rear of the police vehicle; the officer or the teenager?
Watching this video, my impression was that the officer was excited and, for lack of a better phrase, jacked-up. I mean, the officer – a full grown man whose build is clearly demonstrative of a person with physical prowess – wrestled a skinny grade 11 youth to the ground with the help of other officers. During this encounter, he called the teenager a “pussy”.
In the opinion of this criminal defence lawyer, there is no place in policing for this kind of language, especially against a yet to be fully developed youth who was clearly overpowered by men.
As an aside, I even wonder about the officer’s use of the term “pussy”; for he references the youth – who is not man – by name-calling him with inappropriate language to suggest that he is not a man. In street parlance, when a bigger person manhandles and easily overpowers a clearly smaller person, we don’t call the smaller person a “pussy”. We might, however, call the bigger person a “bully”. When a bigger person manhandles a smaller person with the help of his friends, we don’t call the smaller person, who was ganged up on a “pussy”. We might, however, call the group of people who ganged up on the lone person, “thugs” or "cowards". No matter how we spin the issue, in the professional world of policing, we should not tolerate the use of this kind of language at all.
As aforementioned, since I have not been privy to all of the evidence I cannot reasonably comment on the propriety of the conviction. That said, from watching the video, I have serious concerns. The fact that the officer speaks in an obviously aggressive and threatening tone, using highly inappropriate language not conducive to the office of police is troubling. That the officer appears to assault the youth by pushing his head into the door of his SUV and continues to swear for minutes after the physical encounter ended, is also telling.
Regardless, whether the youth’s conviction was appropriate or not, the simple fact is – in my opinion – the officer who is communicating inappropriately presents as lacking the disposition necessary to be a good police officer. Whether the youth deserved to be arrested and convicted in no way minimizes or justifies the terrible behaviour of the officer in this case.
Encounters such as those referenced in this post injure the public’s perception of police. As more aggressive police encounters are properly spotlighted for public viewing, the risk is that the public’s trust in police will continue to diminish or worse, be destroyed altogether. If this happens, how can we expect members of the community to work with the police to ensure that our law is respected? More importantly, as police conduct begins to cross the line from lawful to unlawful, why should we expect those not involved in law enforcement to respect the law when those entrusted to enforce it, do not?
This is why police reform is necessary. To my mind, we need to move away from the kind of steroid, militarized and arguably “above the law” policing, to a more community-based, interactive model built on respect and trust.
It is my hope that police forces across North America (including Canada) start the process of real change.
In conclusion, I would like to say THANK YOU to the members of police forces everywhere (including Calgary) who work every day to build trust and confidence with the communities they serve. You are special officers. To those officers that act outside the law or in ways that do not engender respect and trust, I say, maybe now is the time for some meaningful introspection. Maybe now is the time to think, "but for the grace of God, go I" and to accept that you can be part of real change or find a different job.
David G. Chow
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