How did what has been called "the largest police corruption scandal known in Canadian history" come to end in such a shocking fizzle in a Toronto courtroom yesterday?
In the result, taxpayers paid untold millions - even five years ago the tab was already being described as "literally into the millions of dollars" - on a sophisticated criminal investigation that spanned 11 years and involved officers from the Toronto force and the Royal Canadian Mounted Police - for naught.
No one will ever know whether some of the officers on the city's much-maligned, now-disbanded central drug squad were, as alleged for more than a decade, dirty cops.
The six veteran officers weren't convicted; they weren't acquitted.
Rather, the case against them was stayed - stopped -- because it took so long to get to trial, leaving the officers with ruined careers, destroyed or jeopardized marriages, a need for antidepressants, blackened names but no vindication.
Prosecutors can appeal, but given that the charges were tossed precisely because of delay - with the predictable effect on witnesses' memories - and that a new trial, if ordered, is years away, it would seem infertile ground.
So, how did it happen?
One part of the answer lies in the criminal justice system's version of what in the real estate industry is the hard truth known as "Location, location, location."
In the criminal courts, the comparable mantra is "Disclosure, disclosure, disclosure," that being the prosecutorial obligation to give, and in a timely manner, the accused man (in practice, his lawyer) all the evidence police have gathered against him.
The prosecutors in the case of Regina v Schertzer et al, Ontario Court Judge Ian Nordheimer said yesterday, failed in spectacular fashion to do that.
Lest anyone imagine the six - John Schertzer, Steven Correia, Ned Maodus, Joseph Miched, Raymond Pollard and Richard Benoit - walked away on a legal technicality, Judge Nordheimer's sharp reminder that "disclosure is not an administrative annoyance created to increase the workloads of prosecutors" countered that.
The judge frankly admitted he could "find no explanation for the glacial progress of this prosecution" and no evidence that the prosecutors were alert to the dangers of delay and ever tried to move things along.
"Rather," he said, "the record creates an impression of complacency, or perhaps a lack of awareness ..."
But the second part of the answer is arguably found in the fact that these were no ordinary Crown attorneys from the gritty trenches of Ontario's crowded courtrooms who oversaw this screw-up, but rather those with the Special Prosecutions Unit of the Ontario Attorney-General's office, the very branch tasked specifically to handle, among other cases, the prosecution of the province's police officers charged with serious crime. In a general way, the former are the grunts of the justice system, often starting off their careers in the bowels of the Old City Hall courts, handling everything from shoplifting to rapes and drunken brawls to murders and learning the hard way the consequences of failure.
In the same general way, the latter are the prosecutorial intelligentsia, or perhaps the technocrats: They typically have less experience in the muck and spend much of their time in appeal courts, where the consequences of losing are usually less dramatic, and less severe, than those of losing a murder trial. The unit's record in rough-and-tumble criminal court in high-profile police prosecutions is spotty at best. Certainly, by Judge Nordheimer's reckoning, the trio of prosecutors headed by Milan Rupic, the director of the Special Prosecutions Unit, seemed perilously, even carelessly, unaware of the importance of their disclosure obligations.
The criminal charges against the six first took the form of Police Services Act charges, or internal, within-the-force charges. These were dismissed in the fall of 1998.
Two years later, four of the officers, and four others, were criminally charged with fraud, theft, forgery and breach of trust.
In 2001, then-Toronto-chief Julian Fantino brought in Chief Superintendent John Neily of the RCMP to head the reorganized investigative team, and early in 2002, those charges were stayed by the prosecutor on the curious ground that proceeding with them would jeopardize the renewed RCMP-led probe.
Then, in March of 2003, a clearly desperate Chief Supt. Neily wrote an unusual letter to Mr. Rupic.
He was, he wrote, "extremely concerned with what appears to be a lack of any overt action to review our court briefs, review our material for disclosure or to work with us to formalize a prosecution strategy...My task force is nearly ready to proceed [with the laying of new charges]and you have yet to commence your review...We cannot continue to wait months and months for action on your part ...I have said this to you time and again and yet there is no change."
Chief Supt. Neily described the unit's inaction as unprecedented, reminded Mr. Rupic that "every time I have met with you, I have indicated ... the extraordinary nature of this investigation ..."
He told Mr. Rupic, then apparently relatively new to the director's job, that "some of the best detectives in the GTA [Greater Toronto Area] had "reasonable and probable grounds to believe that some 173 criminal offences have been committed by nine police officers" (many of these, as the judge noted, fell by the wayside). He singled out four prosecutors who had been helping the police with search warrants and affidavits, then wailed, "But otherwise, there is no obvious plan for this massive, Canadian precedent-setting criminal investigation.
"This is the largest police corruption scandal known in Canadian history, yet if anyone asks me what the Crown's reaction is, I could not provide them that answer."
Astonishingly, Judge Nordheimer said in his judgment, "There is no evidence before me that there was any response to this letter, nor is there any evidence before me to contradict or refute the complaints that Chief Superintendent Neily makes in his letter."
The judge concluded "the Crown was sitting on its hands rather than actively assisting the investigation."
Only on Jan. 7, 2004, 10 months after Chief Supt. Neily's letter, were the charges against the six laid.
And the disclosure that followed was achingly, outrageously slow: It came late, in bunches as big as 65,000 and 80,000 and 110,000 pages and in dribs and drabs; it was
sometimes heavily edited and of dubious use when it arrived and it kept coming, continued throughout the preliminary hearing (once even arriving after defence lawyers had cross-examined witnesses), the pretrial conference, the pretrial motions and even, the judge said yesterday, "to this day."
In the end, he held the Crown responsible for almost all of the delay, though the judge remained bewildered why the disclosure should have taken so long.
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