Ontario's Attorney General is directing the province's Crown Attorneys to report instances where police officers have lied while under oath.
It's the best news to come out of the criminal justice system in a long time.
It's good news because, until now, lying police officers who have freely and fearlessly concocted evidence while under oath have generally faced no consequences for their brash and brazen disrespect for truth and justice.
But while the objective of the policy -- in part to reduce perjury by officers and to ensure that untruthful officers are held accountable -- is laudable, the means by which the policy is to be implemented leaves too many loopholes and too much to the discretion of too many actors.
Yes, some officers have lied in court about all kinds of evidence: whether a piece of incriminating evidence was found on a suspect or on someone else, whether or not they punched the accused or whether he "accidentally" hit his head on the table, whether the suspect actually assaulted the police, or whether the police beat up the accused, then charged him with assault peace officer to justify their own actions.
It's important to reflect on the impact of these lies: people are falsely charged, sometimes imprisoned, and carry with them a devastating, permanent stigma, even if they are found not guilty at trial. The financial cost and psychological harm to these victims is immeasurable.
But there is also a longer-lasting, profound damage to the justice system: when police officers blatantly and intentionally lie -- and get away with it -- the public loses faith in the criminal justice system.
How can we trust the police and our courts if the very people who are charged with upholding the law can break it and get away with it?
When police officers lie, the courts have to disassociate themselves from these illegal acts. But the courts have no jurisdiction to discipline the officers. The only remedies that are often left to the courts are either to exclude key evidence that the police obtained illegally or to stay the proceedings, effectively ending the entire trial.
To do otherwise would condone the misconduct and would make the courts complicit in the officer's fabrications and disrespect for justice. Here lies another impact of these lies: people who may otherwise be guilty go free.
Will the Attorney General's initiative (reported in the Toronto Star), which is to take effect in early 2013, result in police accountability and reduce the frequency of officers lying under oath?
Probably not by much and not for a while.
There are three main problems with this proposal. First, the Crown Attorneys charged with reporting the incident often have too much interest in maintaining a positive relationship with the police. Second, the proposed process requires too many steps. Finally, it is police officers who are tasked with investigating one of their own.
Police officers are a constant presence in courthouses. They work closely with Crown Attorneys: organizing the cases, the files and the witnesses for trial. Crown Attorneys rely on the officers. While most Crown Attorneys do preserve a distant, professional relationship with "their" officers, as they sometimes call officers involved in their cases, they also try to maintain a friendly, cooperative, even social relationship.
Crown Attorneys are under pressure not to risk their relationship with the police by "snitching" on one of them. It takes a bold and perhaps reckless Crown Attorney to take this risk.
Furthermore, the proposed model requires the responsible Crown Attorney to report the incident to a supervising Crown Attorney, who is then required to review the file and transcripts. If this supervisor determines that the lie was deliberate, then she is supposed to forward the file to yet another Crown Attorney, a regional director, for his review. That regional director will decide whether or not to send the file to the police -- not with a direction to lay charges, but simply to investigate.
The police will then decide whether to charge one of their own, whether to discipline him or her internally, or whether to do nothing at all.
Seems like a perfect plan for collecting dust.
We know that police are often reluctant to hold accountable another police officer. This will be especially true when the victim, the person against whom an officer fabricated evidence, is perceived by the police as guilty, as scum, or as guilty scum.
Asking the police to investigate and charge a member of the force is often tantamount to condoning police misconduct.
Faced with these obstacles, it is difficult to cheer wholeheartedly the proposal made by the Attorney General.
Still, the proposal is not without merit. It recognizes a significant problem. It asks Crown Attorneys to take responsibility for officers who, under their watch, break the law.
But if we want to hold officers accountable for their untruthful testimony, we must implement a system that will respond more quickly to every instance when a police officer lies under oath.
For this reason, the new proposal should make it mandatory for Crown Attorneys to report police who have lied. The process should move along expeditiously. Perhaps the need for a second escalated report should be eliminated.
Furthermore, the final decision of whether or not to lay charges should not rest with the police. Every Crown Attorney can go to a justice, swear an information, and have charges laid against a person who is suspected to have broken a criminal law. In cases where the evidence is sufficiently convincing, why not make it mandatory for Crown Attorneys to take this step?
Most importantly, the Attorney General should examine ways of changing police culture, a culture that at times encourages and rewards misconduct.
The cost of tolerating lying police officers is simply too high: if we condone these acts, we undermine the public's faith in the criminal justice system, and increase the potential for the innocent to be convicted and the truly guilty to go free.