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Prof
Pubdate: Thu, 12 May 2005
Source: Edmonton Journal (CN AB)
Copyright: 2005 The Edmonton Journal
Contact: http://www.canada.com/edmonton/edmontonjournal/
Details: http://www.mapinc.org/media/134
Author: Charles Rusnell
CROWN RIGHT NOT TO CHARGE COPS WHO TASERED TEEN: PROF
EDMONTON - The Crown was correct not to charge the police officers
accused of assaulting a teenager with a Taser because there was little
chance of gaining a criminal conviction, a law professor says.
The criminal standard for an assault charge "is a very difficult one
to meet against anybody, and it's particularly onerous when you're
dealing with a police officer," University of Alberta law professor
Sanjeev Anand said of the case involving Randy Fryingpan.
"Generally, police officers are viewed as having a great deal of
credibility both by the Crown and by many judges, and in this case,
the Crown obviously believed them even though one judge didn't."
Anand said the Crown's case against the officers also was fatally
weakened by inconsistencies in the statements of witnesses, including
Fryingpan himself.
"When the victim himself can't remember what happened there is not
much the Crown can do," said Anand, who is a former prosecutor.
Fryingpan was 16 years old and passed out drunk in the back of a car
in the parking lot of a north-end townhouse project on Oct. 5, 2002
when police were called. The teen was shocked six times in 66 seconds
by Const. Mike Wasylyshen, the son of then-chief Bob Wasylyshen.
In March 2004, police sent the findings from their internal criminal
investigation to the Crown in Calgary for a legal opinion. The Crown
decided to wait until after Fryingpan's trial, on a charge of breach
of probation, before rendering its opinion.
In February 2005, a provincial court judge threw out the case against
the teenager, ruling that his charter rights had been breached.
Provincial court Judge Jack Easton rejected the police officers'
testimony that Fryingpan refused to get out of the back seat of the
car and that their actions were justified. He ruled the deployment of
the Taser was unnecessary and he said Fryingpan had been subjected to
"cruel and unusual treatment."
Calgary's chief Crown prosecutor explained that the standard for
proving a breach of charter rights is the balance of probabilities, a
much lower standard than the standard for a criminal charge, which is
beyond a reasonable doubt.
Anand said the onerous standard for criminal charges, and a growing
lack of public trust in internal police investigations, may result in
more civil lawsuits against the police.
"That doesn't tend to happen now, but I can tell you that unless we
begin to see internal police investigations becoming more responsive
and more in tune with these judicial findings, you're going to have
more and more people attempting to obtain civil orders in court," he
said, adding this may be a positive development in terms of ensuring
appropriate oversight of the police.
"If we're really concerned about police conduct and holding them to
account for that conduct, then there have to be some real sanctions
for their behaviour."
But Fryingpan's lawyer, Tom Engel, lawsuits are expensive,
time-consuming and frustrating, and most of the people who would
launch such suits against the police are poor.
"They can't sue the police unless they can find a lawyer who will do
it on a percentage basis or if legal aid will cover the cost. But then
you have to find a lawyer who will take it at legal-aid rates," Engel
said.
Engel filed a lawsuit against the Edmonton Police Service on
Fryingpan's behalf on Oct. 1, 2004.
Fryingpan is seeking a total of $150,000 for claims of assault, mental
and physical injury, and punitive damages.
None of the allegations have been proven.
The police service has yet to be served with the lawsuit.
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