Appeal decision on drug cops 'puzzling'
The Ontario Court of Appeal has rightly thrown out a 45-day conditional sentence that was imposed upon a group of Toronto drug squad officers and replaced it with a three-year prison term, says Toronto criminal lawyer Roots Gadhia.
“But it is puzzling that the court then stayed the proceedings claiming that these officers had in fact served their time and therefore a stay was warranted,” she tells AdvocateDaily.com.
In R. v. Schertzer, 2015 ONCA 259 (CanLII), the court said police officers “owe a special duty to be faithful to the justice system” and ruled that the 45-day conditional sentences “do not reflect society’s condemnation of the conduct nor do they address the need to denounce the crimes and are thus demonstratively unfit.”
The court set aside the conditional sentences and substituted a three-year prison term, but then said in light of all of the circumstances — particularly the passage of time since the sentences were first imposed and the fact that the sentences imposed have been served — the court stayed the sentences.
John Schertzer, Steven Correia, Ned Maodus, Joseph Miched and Raymond Pollard were members of the drug squad of the Toronto Police Service and were convicted of attempting to obstruct justice. Three of the men — Pollard, Maodus and Correia — were also convicted of perjury.
The central issue at trial was the timing of the search of an apartment where a man named Ho Bing Pang lived. The Crown alleged that the officers searched the apartment before the search warrant physically arrived at the premises. The officers maintained that they did not search the residence until after the warrant arrived.
The attempt to obstruct justice count alleged that all of the officers practised deception, including by falsifying their notes “and/or” by testifying falsely, in order to conceal that the search of Pang’s apartment had been done without a warrant. The perjury counts particularized that Pollard, Maodus and Correia gave false evidence at Pang’s preliminary inquiry.
Each received a 45-day conditional sentence, but the case ended up in court again after both the defence and Crown appealed — the defence for the convictions and the Crown because the sentences were unfit.
Gadhia says the Court of Appeal's finding that the sentence was more appropriately within range of three years is a good result.
“I think that speaks not only to the fact that the public should feel confident in the police and the authorities and that a breach of trust of this nature should be penalized to such an extent,” she says.
But the court’s decision to stay the sentence is puzzling, Gadhia says.
"The judgment doesn’t give a cohesive argument for why the sentence was stayed," she says.