Can the Crown and OPP obstruct justice?

by Gary McHale - The Regional

February 17, 2010

The OPP and the Crown have presented the view that they have absolute freedom to use discretion as to who to arrest and prosecute. However, in the past week we have come across several Supreme Court rulings that disagree with their view.

In 2007 the Supreme Court ruled on a case where a police officer was charged with Obstructing Justice because she refused to gather evidence of a crime. The officer had been convicted of the charge and was appealing to the Supreme Court.

The officer's argument was that she had discretionary authority on whether to continue an investigation into a crime. She stated she decided there was a better way to handle the situation than to involve the criminal justice system. In her view the accused was depressed and needed treatment.

The accused had been driving while intoxicated and the officer failed or refused to give a breathalyser test. Without a breathalyser there would be no way the driver could be prosecuted and this lead to the charge of Obstructing Justice.

Under the heading of Police discretion the Supreme Court stated, "There is no question that police officers have a duty to enforce the law and investigate crimes. The principle that the police have a duty to enforce the criminal law is well established at common law."

However, the Court also stated, "Nevertheless, it should not be concluded automatically, or  without distinction, that this duty is applicable in every situation. Applying the letter of the

law to the practical, real-life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system."

I can think of many examples where real life situations could result in a police officer not laying a criminal charge and still justice would be served. However, it is this type of wording by the Courts that enables the OPP to justify why they do not arrest Native Protesters who openly commit criminal acts.

The OPP views these situations where discretion justifies not laying a charge.

The answer is found in the same Supreme Court ruling. Discretion cannot be mandated from above nor controlled by policies instituted by senior officers or Provincial Governments.

The Supreme Court stated, "a police officer who has reasonable grounds to believe that an offence has been committed, or that a more thorough investigation might produce evidence that could form the basis of a criminal charge, may exercise his or her discretion to decide not to engage the judicial process. But this discretion is not absolute. Far from having carte blanche, police officers must justify their decisions rationally."

The police officer must offer a reasonable argument that can be reviewed by others. The court stated, "discretion must have been exercised honestly and transparently, and on the basis of valid and reasonable grounds."  Furthermore, the court stated, "decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute a proper exercise of police discretion."

The court even ruled that an officer's honest belief that he has exercised his discretion properly is not sufficient to justify his decision. The court ruled that 'administrative directives' [by senior officers] or the 'administration of justice in the province' [policies of the Government] are not binding on the officer since they 'do not have force of law'.

In the case that was before the Supreme Court the officer failed to give a breathalyser test after the officer became aware that the accused was a fellow police officer. The Crown argued that the officer's actions amounted to favouritism and was not police discretion. The court agreed and convicted the officer of Obstructing Justice and the Supreme Court upheld that ruling.

What does all this mean for Caledonia and Haldimand County?

First, it means that individual officers do have discretionary authority to lay or not lay a criminal charge.

Second, it means that OPP Policies or Ontario Government Policies are not binding on individual officers since they have no authority in law.

Third, it means that individual officers must have a legal reason not to lay a charge - favouritism, one's cultural beliefs or racial bias are not legal reasons.

We should remember that section 15 of the Charter of Rights and Freedoms states, "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

Residents in Haldimand County have a right to equal protection and equal benefit of the law. No officer can use his discretionary authority to supersede these Rights.

For example, no officer can use his discretion not to investigate or gather evidence of a crime simply because the crime was being committed by a white person against a black man. We would all agree that such a use of discretionary authority by a police officer would be wrong.

Why then is it okay for the OPP to stand by and watch one race attack, assault, threaten, create property damage etc. against another race simply because it is Ontario Government policy to be peacekeepers?

Once a police officer is aware there is reasonable and probably grounds that a crime has been committed he is duty bound to investigate and to gather evidence. His duty includes the proper exercise of police discretion but that is limited by the legal exercising of that authority. Failure to carry out his duty or the improper use of his discretion is a crime and subject to a charge of Obstructing Justice.

In plain English, if an officer is watching a crime taking place then he is duty bound to gather evidence of the crime or face a possible criminal charge. The only defence against the charge is that he used his police discretion properly. The defence that he was just following orders or following government policy isn't a defence against the charge.

Furthermore, the Court has convicted lawyers, crown attorneys and senior police officers who interfered in any way with the course of justice. Misleading the court in any way is seen as a serious offence and subject to a maximum of 14 years in jail.

I doubt few believe that the OPP and the Crown have not been obstructing justice over the past four years in Haldimand County and that they should be held to account for their actions.

As I submit this to the Regional News several charges of Obstructing Justice are being filed against Crown Lawyers and senior OPP Officers.