In August 2021, a Toronto drug case took a dramatic flip when a prosecutor made what the decide known as a “extremely uncommon” request, asking the court docket to throw out proof by a key police witness.
It got here after defence legal professionals had grilled Toronto Police Service Const. Ryan Kotzer over “disparaging feedback about black individuals” in an unofficial 51 Division police chat group.
In one other dialog, a unique 51 Division officer requested concerning the pubic hair of a feminine colleague and whether or not it was “like a blk chick.”
That vulgarity additionally discovered its method into the courts — used to depict the officer who made the remark as racist in a bid to throw out a separate human-trafficking case.
The troubling content material of the unofficial Toronto Police Service 51 Division discussion groups has been rising in social media leaks for years.
Screenshots shared with The Canadian Press present officers exchanging pornographic content material, rape jokes, complaints about “leftist” judges, and a photograph of Ontario Premier Doug Ford’s daughters, with one officer commenting, “I do know which one I would like.”
Nevertheless it’s by no means beforehand been reported how the conversations have been used to attempt to impeach the credibility of police witnesses in at the very least two instances.
It’s an instance of how courts and police forces are being pressured to grapple with the implications of personal discussion groups amongst officers. Such discussion groups elevate authorized and moral questions, blurring traces between private and non-private behaviour, whereas revealing — and doubtlessly obscuring — racism, sexism and different misconduct amongst officers.
Defence lawyer Alonzo Abbey mentioned he was shocked when the Crown prosecutor requested the court docket to thoroughly scrap what the decide within the Ontario court docket of justice known as “very problematic” testimony from Kotzer, who had been surveilling the Moss Park homeless encampment in downtown Toronto.
“It was stunning,” mentioned Abbey. “I’ve by no means seen that earlier than.”
It was clear, the decide dominated, that Kotzer’s proof in opposition to two 20-year-olds accused of possessing fentanyl and a loaded handgun was compromised. The case then collapsed, by no means making it to trial.
“The truth that these are cops who’re speaking like that amongst themselves within the personal chat could be very regarding and troubling,” mentioned Abbey, who represented one of many accused.
Privateness and allegations of investigative overreach getting used in opposition to officers have in the meantime emerged as a key battlefield over unofficial police chats.
In British Columbia, officers within the Nelson Police Division and Coquitlam RCMP have tried to dam separate disciplinary probes involving group chats on private telephones.
In a single dialogue outlined in an RCMP search warrant software, unidentified Coquitlam Mounties have been mentioned to consider their personal chats wouldn’t be uncovered as a result of they have been “amongst the trusted.”
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It’s a place that displays critics’ considerations that some group chats are used to improperly hold police issues personal.
Toronto Police Affiliation president Clayton Campbell mentioned police departments throughout the nation are carefully watching a court docket problem by the officers in Nelson in opposition to the seizure of their private telephones “as a result of it may have impacts throughout Canada.”
Campbell mentioned the brand new Group Security and Policing Act in Ontario has comparable language to B.C.’s Police Act, “about warrantless search of our members’ private cellphones.”
He mentioned police group chat materials that’s been made public could also be “troubling,” however individuals in regulated professions like policing nonetheless have rights to privateness and rights assured by the Constitution of Rights and Freedoms.
Relating to the 51 Division chats, he mentioned officers at the moment are issued telephones by the Toronto Police Service, and “issues have modified.”
Kotzer couldn’t be reached for remark. Gary Clewley, a lawyer who has beforehand represented him, mentioned Kotzer wouldn’t need to be interviewed, whereas declining to assist put The Canadian Press in contact with him.
The Toronto Police service and the Toronto Police Affiliation each declined to facilitate an interview with Kotzer.
Former Toronto Police Service officer Firouzeh Zarabi-Majd leaked a number of the unofficial 51 Division group chats on social media from 2019, together with these of Kotzer.
Zarabi-Majd mentioned she later watched group members depart the chats in real-time after they came upon they have been “compromised,” and people group chats “not exist.”
However officers “nonetheless use their very own telephones to speak,” she mentioned in a textual content message. “That’s not going to cease.”
‘THE BUSINESS OF THE PUBLIC’
Aislin Jackson, a lawyer with the BC Civil Liberties Affiliation, mentioned police mustn’t count on privateness in the event that they use off-the-books discussion groups.
“It appears to me like none of us can moderately count on that our communications to any police officer will probably be personal from the police, together with the police themselves,” she mentioned.
She mentioned there may be “a really actual risk” police use private telephones and encrypted messaging to skirt freedom-of-information or defence disclosure obligations.
If officers in discussion groups wished to conduct “the enterprise of the general public” in personal, “that doesn’t appear correct to me,” she mentioned, and it was “naive” to count on privateness for remarks revealing misconduct.
Within the Coquitlam case, a search warrant software in B.C. provincial court docket by Sgt. Bryson Yuzyk, an RCMP skilled requirements officer, describes personal chat remarks by Mounties that allegedly embrace:
— calling a feminine rookie “disgusting” and “gross” and mocking her weight by “insinuating that the form of her vagina was seen by way of her clothes;”
— use of a homophobic slur in opposition to black individuals and calling a fellow RCMP officer who was not within the chat a “turban tornado;”
— bragging about “Tasering unarmed black individuals” and calling an alleged sexual assault sufferer a “dumb Mexican.”
RCMP constables Ian Solven, Mersad Mesbah and Philip Dick have code of conduct hearings scheduled for Feb. 17 in Surrey, B.C.
They tried to exclude the private telephone proof from their upcoming code of conduct case, claiming its use violated their Constitution rights. An RCMP conduct board rejected the declare final June.
The trio declined to remark for this story, and not one of the allegations in opposition to them have been confirmed.
Within the case of two former and three present cops in Nelson in B.C.’s southern Inside, precisely what they mentioned in a WhatsApp chat group hasn’t been made public, though deputy police criticism commissioner Andrea Spindler characterised the chat group as containing “racist and discriminatory sort of jokes and commentary.”
She mentioned in an interview that except the investigation by the Police Grievance Commissioner goes to a public listening to, she couldn’t say whether or not the chat’s contents can be launched.
The officers are petitioning the B.C. Supreme Courtroom over the seizure and search of their private telephones. All say in affidavits they “thought of that the WhatsApp group was personal and would stay personal.”
“I admire that the members are making the argument that these are their personal ideas, their personal messages,” Spindler mentioned.
“However I believe there are societal and neighborhood expectations that now we have of cops and by making commentary that’s seen to be, if confirmed, racist or discriminatory, in our view that might quantity to discrediting the fame of the police division and quantity to misconduct.”
Christine Joseph, the lawyer appearing on behalf of the Nelson Cops, declined to remark when contacted by The Canadian Press.
Joseph informed the Nelson Star in August 2024 that, “any time there may be an investigation underneath the Police Act, officers — whether or not accused of misconduct or simply witnesses — are vulnerable to having the contents of their private telephones, textual content and instantaneous messaging, search and name historical past, pictures, social media accounts and the like seized and reviewed by an investigator.”
The Toronto Police Affiliation’s Campbell mentioned he agreed with the Nelson police, that warrantless searches of officers’ private cellphones are unconstitutional, and correct course of must be adopted to make sure searches are lawful quite than a “fishing expedition.”
He mentioned group chat contents being made public — whether or not by a whistleblower or by way of official investigations — may have critical penalties.
“That content material, as soon as it’s out within the public realm, defence attorneys will 100 per cent use it to disparage a member in a trial,” he mentioned.
“It’s necessary as a result of it may have ramifications to actual victims, necessary prosecutions, so we take it very severely, so we simply need correct course of.”
Jackson with the B.C. Civil Liberties Affiliation mentioned police accountability was of paramount concern.
“(With) the quantity of energy that the police need to intrude within the lives and even trigger hurt to members of the general public, it’s actually necessary that the police are held to excessive requirements of behaviour and held accountable for any misconduct,” she mentioned.
“Why ought to the police have any extra safety over and above what an odd citizen would have after they’re speaking with cops?”
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