Pubdate: Thu, 23 Apr 2015
Source: Toronto Star (CN ON)
Copyright: 2015 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Wendy Gillis
Page: GT 1

COP'S DECEIT LEADS TO CASE DISMISSAL

Ruling comes as another officer called out for violating
charter

For the second time in a month, an Ontario judge has tossed out a case
involving the discovery of a handgun after ruling a Toronto police
officer was dishonest in court and violated a citizen's charter rights.

In a harsh decision made public this month, Superior Court Justice
Jane Kelly blasted Toronto police Const. Juin Pinto, who has a history
of deceit in court, for "fabricating" his basis to conduct a search of
Collin Conrad Taylor during a vehicle stop in August 2010.

Pinto testified he searched Taylor after smelling marijuana
"everywhere" in the car - a claim Kelly found unbelievable, in part
because the other officer on the scene did not smell the drug before
searching the car.

"I find that there was no such smell and was simply fabricated in
order to search both Mr. Taylor and his car," Kelly wrote in the
decision. "The court must disassociate itself from such behaviour."

It was the second time Pinto was found to have lied using the
"marijuana smell" scenario: In 2011, Ontario Superior Court Justice
Anne Molloy called him out for attempting to claim it as the basis for
a search. She also tossed out as evidence in that case the loaded gun
found in the search.

"I do not believe he smelled marijuana, nor do I believe he saw
marijuana. . . . He was working on a hunch," Molloy wrote in her ruling.

Pinto could not be reached for comment Wednesday. Toronto police could
not respond by the end of the day Wednesday regarding whether Pinto is
now under investigation by the force's Professional Standards unit, or
if his conduct was investigated following Molloy's 2011 ruling.

When a judge finds a police officer lied in court, the trial
prosecutor must inform his or her superior, who then decides whether
the matter should be referred to the police for investigation.

The protocol was introduced after a Toronto Star investigation into
police dishonesty in court found that it was rarely reported back to
or acted upon by senior police officers.

The Ministry of the Attorney General would not comment on this
case.

Kelly's April 2 decision came just days after another Toronto judge,
Justice Ian Nordheimer, threw out a case involving a handgun, ruling
the constitutional rights of Samatar Jinje, 20, were violated during a
search.

Nordheimer ruled that Const. Kimberley Sabadics had "constructed"
evidence "for the sole purpose of attempting to justify her hunch that
(the accused) had a firearm."

In a rare move this week, outgoing Toronto police chief Bill Blair
weighed in on the case, telling Toronto Sun columnist Joe Warmington
"this was great work."

"She took a gun off the street and that can save lives," Blair was
quoted as saying. "My people do that kind of thing every day."

The comments took many in Toronto's legal community by surprise,
including James Miglin, the lawyer who represented Jinje.

"It provides little public confidence that there's any accountability
for this," he said Wednesday. "Let's hope the future chief doesn't
suffer from those sorts of misgivings."

"A finding like this by a judge is very rare," said David Bayliss, the
Toronto criminal lawyer who represented Taylor. "On the rare occasions
that a dishonest police witness is caught out, they should be made
examples of, not commended for their good police work. If not, a
systemic problem will only be made worse."

Toronto police did not respond to a request for comment.

Mike McCormack, president of the Toronto Police Association, said his
members understand they need to operate within the framework of the
law.

"We're out there doing a very difficult job, and that's why we have
the court system. . . . It's not necessarily that the officers did
anything wrong, there could be an issue with the way they gave
evidence, an issue with the way things were interpreted, there could
be a whole bunch of circumstances. That's why when the judges make
comments like that, that this is looked at" by the Professional
Standards unit.

Under a precedent set in a 1999 Ontario Court of Appeal ruling, a
previous judge's finding that a police officer was dishonest in court
cannot be used in a subsequent case.

Daniel Brown, Toronto region director for the Criminal Lawyers'
Association, said that prohibition makes it even more important for
the public to know that when a judge concludes an officer probably
lied in court, that misconduct will be investigated.

"A lack of transparency about the process of investigating police
officers who lie under oath does nothing to foster confidence in our
criminal justice system. This is especially true since judges are
prohibited from relying on prior instances of untruthfulness when
assessing an officer's testimony in court," Brown said in an email.
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