LLM candidate Nathan Gorham writes Toronto Star oped: "How to Stop Police From Lying"

Four times in the last month, Toronto police officers were found to have lied in court — one “constructed” evidence; another “fabricated” his grounds for arrest; others falsified notes and committed perjury; and finally, one officer lied to a Justice of Peace and then again in court. These cases do not reflect the majority of decent and honest police officers, but they are a jolting reminder that some officers are willing to lie under oath.

Although startling, four cases of dishonesty are not revelatory. Human history and experience proves that some people are dishonest. No office, oath or profession has ever been immune from the corruptibility of human nature; priests have lied, doctors have lied; business people have lied, politicians have lied, lawyers have lied, and police officers have lied.

To protect against dishonesty and corruption, important safeguards have developed in British and Canadian criminal law over the span of several centuries.

First, the open-court principle is the presumption that criminal court proceedings are open to the public. It helps ensure that justice is both done and seen to be done. It is borne of the recognition — to borrow the words of Jeremy Bentham — that “in the darkness of secrecy, sinister interest and evil in every shape have full swing … where there is no publicity there is no justice.”

Second, the defence is given the right to cross-examine without significant constraint. The Supreme Court has referred to this right as “an indispensable ally in the search for truth.”

Third, the prosecution is required to disclose its evidence. Meaningful disclosure allows the defence to investigate the truthfulness and reliability of the prosecution’s evidence.

These three principles help protect truth, liberty and innocence against the inevitability that some witnesses will attempt to distort and corrupt the criminal trial process. The events of last month prove it. Without disclosure, cross-examination and transparent proceedings, the dishonesty likely would not have been exposed.

Four cases of deliberate deceit in a month should be a sharp reminder that safeguards against corruption are critical tools to protect the criminal process against distortion. They should also call into question a recent practice in Ontario whereby a significant measure of the right to disclosure, the right to cross-examine and the open-court principle have been surrendered to a desire for efficiency — that is, search warrant cases involving confidential informants.

Over the last several years, a body of cases has emerged where courts accepted and relied upon secret information that came from secret meetings between an informant handler and a confidential informant. Informants — assuming that they’re real people — are commonly entrenched in the criminal underworld. The handler is a police officer that “cultivates” the informant by offering money or help with criminal charges in exchange for information. After the handler makes the deal with the informant, he or she provides the resultant information to a Justice of the Peace during a private meeting to obtain a search warrant. If the police recover evidence, the warrant can then be challenged in court.

The old practice on warrant challenges was that when the police relied upon evidence from an informant, the Crown would not present that evidence to the trial judge unless the information was first disclosed to the defence. In that context, evidence was not relied upon at trial unless it was first made vulnerable to challenge and presented in open court.

Under the new practice, the judge considers and relies upon the secret information, even though the defence is only given a bald summary of the information. The summary does not allow the defence to challenge — through investigation and cross-examination — the truthfulness of the handler, the truthfulness of the informant, or the circumstances of the secret meeting between the handler and the informant.

This practice is wide open to abuse because both the handler and the informant are free to lie with impunity if they choose. The informant could frame an innocent person. The handler could fabricate a fictitious informant, lie about what the informant said, or hide matters that reflect badly on the informant’s credibility and reliability.

It is unavoidable that some handlers and informants will attempt to mislead the court because they are human beings, and some human beings lie. As a result, it is only a matter of time before a secret deal made between two liars is allowed to distort the criminal trial process — that is, assuming it has not happened already. The wisdom of this practice should be reconsidered in the light of the four cases of deliberate dishonesty in the last month.