Secret memos detail allegations of police dishonesty, misconduct

In a January 2021 ruling, an Ontario Court Justice criticized Toronto police officers for entering a suspected stash house and looking in a partly-opened suitcase, kitchen cupboard, washroom vanity, and an ottoman — before a warrant arrived.

Justice Mara Greene ultimately allowed the evidence against the accused, who was targeted as part of a drug investigation dubbed Project Sparta. But she didn't let the officers go uncriticized.

"The search conducted by the officers was outside the scope permitted by law," Greene wrote in her decision.

Had the name of the accused not appeared in a Public Prosecution Service of Canada (PPSC) memo, members of the public might never have known about Greene's comments. 

That's because many of the memos the PPSC prepares describing allegations of police misconduct are heavily redacted before being released via access to information legislation.

CBC News obtained PPSC memos whose blacked-out pages suggest the government's censorship could conceal information already aired in an open courtroom.

In cases where the name of the accused was not redacted, it is possible to locate publicly-available court records and fill in the information the PPSC may have censored before the memo's release. 

Without that, it's impossible to learn more about other misconduct allegations. 

James Turk, director of Toronto Metropolitan University's Centre for Free Expression, said records relating to allegations of police dishonesty "should be entirely in the public domain."

"They don't have a right to secrecy just because they're a police officer," Turk said. "In fact, it's the exact opposite." 

PPSC flags alleged misconduct to police forces

As a federal agency, PPSC lawyers must notify their superior in writing when a judge finds or suggests that a police witness has given intentionally false or misleading evidence under oath. It is also required to share that information with police for a possible investigation. The service must also do so when police officers are accused of discriminating on the basis of race, religion, sexual orientation, or other factors. 

In a 2018 directive, PPSC officials said staff must also notify management of alleged crime and other misconduct committed by "justice system participants," including police. 

In 2021, Ontario Court Justice Cecile Applegate found that Ontario Provincial Police officers Stephen Finch, since retired, and Chris Prout had "consciously or subconsciously" zeroed in on a suspect because he is Black. 

"He was subject to racial profiling, which is an affront to human dignity," Applegate said in a judgement, before acquitting the defendant, who was arrested by police in a vehicle containing drugs and a loaded handgun. 
 
"You can't conduct a criminal investigation of a man who stops for gas at a gas station simply because he's Black in Midland," defence lawyer Jordana Goldlist said, referring to the town about a two hours' drive north of Toronto. 

"That was essentially the officer's own evidence: he was a Black man in Midland."

Drug case collapsed

Another memo released to CBC News describes a finding from Superior Court Justice Nancy Spies in a drug prosecution that arose from a September 2020 traffic stop. 

Toronto Police Constable Brian Miller testified that he searched the driver's satchel and discovered cocaine after making several observations, including smelling fresh and burnt marijuana, and spotting a partially-smoked joint between the driver's legs, Spies ruled. 

The prosecution against the driver collapsed after Spies said  she did not believe Miller's testimony, finding that the officer claimed to have spotted the joint in order to help justify his search. 

The memo noted that PPSC officials were aware of Spies' finding and that other prosecutions linked to Miller would "be assessed for reasonable prospect of conviction." Much of the memo's content comes directly from Spies' ruling, which is available online.    

"Police officers make decisions every single day during their interactions with the public. These interactions are dynamic, often fast-paced, and decisions are made quickly," the Toronto Police Association said in an email statement to CBC News. "In cases where a judge has an issue or makes a finding with respect to credibility or finds there is reasonable doubt against a witness officer, that should never lead to a conclusion that misconduct occurred."

The PPSC also heavily censored a memo titled "Project Siphon—Allegation of Theft of Money." 

During a 2020 news conference, Peel Regional Police announced officers had arrested 88 suspects targeted in Siphon and the force expected to lay over 800 charges for offences including drug trafficking and murder. The records also contain a letter from the PPSC to a professionals standards division at a police service. While the PPSC initially said it would not confirm the specific police force, it ultimately confirmed the letter was sent to Peel police.

"Defence counsel raised concerns about alleged missing currency" but withdrew the allegation after "an inventory of evidence was conducted alongside the Crown Attorney's office and the officer in charge of the investigation," a Peel police spokesperson said via email.

The service would not provide CBC News with the name of the suspect from whose specific case the allegation of misconduct arose.  

What counts as publicly available information? 

In a 2021 decision, Supreme Court Justice Nicholas Kasirer emphasized that freedom of expression protects the openness of the country's courts.

"As a general rule, the public can attend hearings and consult court files and the press—the eyes and ears of the public—is left free to inquire and comment on the workings of the courts," he said, as the country's top court unsealed the Sherman family estate files. 

But the PPSC blacked out large portions of several memos before releasing them, citing legal provisions around sharing personal information and material subject to protections such as solicitor-client privilege. 

The Access to Information Act specifies circumstances in which the federal government can release records containing personal information, including when that information is already publicly available. PPSC spokesperson Nathalie Houle says information disclosed publicly in court might still be protected under the legislation. 

As of June, Houle said the PPSC has recorded 22 memos related to allegations of false testimony and other police misconduct since 2020. But some cases could have prompted more than one memo, Houle said, and the PPSC's number only accounts for memos directed to senior management. 

People should not be handling access to information requests for their own government agency, department, or ministry, said Turk, from the Centre for Free Expression. He says staff are in a potential conflict of interest when they consider releasing information that might upset their bosses. 

Ultimately, Turk says information about police conduct that aired in open court and is not subject to a publication ban should be freely available. 

"To say the public has no right to know that, for whatever reason, is to say the public has no right to know what happened in an open court proceeding, which is fundamentally contrary to our whole conception of how the justice system should operate," he said.