As a Toronto police officer testified by Zoom in a domestic violence trial, Ontario Court Justice André Chamberlain heard the ping of what seemed to be a social media messaging app. Then he saw the officer and the officer in charge of the case, also on the Zoom call, both suppress laughter at the same time.
A few minutes later, it happened again.
In a scathing ruling released Friday, Chamberlain said that after reviewing notes and a special transcript he is convinced Const. Jade McMurray and Const. Sarah Chippior were in communication while Chippior was testifying — which, if true, would seriously undermine confidence in the justice system.
“How could a defendant, in an open court, whose liberty is at stake and who faces significant consequences if found guilty, feel as though he’s had a fair trial if the witness and the officer in charge are communicating surreptitiously while testifying?” the judge wrote.
Chamberlain said he did not know what the communication entailed — whether it was about the case or entirely unrelated — because no records were ever obtained by the Crown and disclosed to the defence. Chamberlain, a former federal Crown, criticized the prosecutors for not obtaining those records given that the content could call into question both the credibility of the witness and of the entire investigation.
“I was deeply troubled by the complete inaction of the Crown on this issue,” he wrote.
Defence lawyer Paula Rochman, who acted as a “friend of the court” for the self-represented accused man, Islamuddin Attayee, said it is outrageous that any witnesses — let alone the officer-in-charge of the case and the officer who arrested the accused — would be communicating while testifying.
“It’s astounding that they thought this was acceptable at so many different levels,” Rochman said.
Rochman said the failure to find out what the communication was about and whether there was a totally innocuous explanation makes the incident even worse.
“Where is the professionalism here?”
A spokesperson for the Ministry of the Attorney General said it would be “inappropriate” to comment on the ruling during the appeal period.
A spokesperson for the Toronto Police Service said that, when notified, a “negative judicial finding” is referred to Professional Standards, who will decide if an investigation is needed. “If misconduct is substantiated after an investigation, the Police Services Act provides for a number of disciplinary measures to be imposed from lost pay to dismissal,” the spokesperson said.
Chamberlain acquitted Attayee on charges of assaulting his wife and a bystander who intervened because he could not rely on the eyewitness identification of Attayee by three witnesses in court. Attayee’s wife did not participate in the trial.
The three witnesses testified they saw a man strike the face of a woman with a stroller and rushed over to stop him, according to the ruling. The man then punched one of the women who confronted him in the face.
The man fled the scene. Police later arrested Attayee at his wife’s home.
While all three witnesses identified Attayee in court as the man they saw that day, Chamberlain pointed out that one witness did so over Zoom where Attayee was identified as the “accused.” Attayee was also wearing a mask at the time due to COVID-19 restrictions in court, and that the trial was taking place two years after the alleged assaults.
Chamberlain said that in-court identification should be used with extreme caution and noted that no photo lineup or any other process to identify Attayee as the perpetrator was done during the investigation.
While the judge did not acquit Attayee over to the communication issue, Chamberlain noted that the incident caused tension between Attayee and his lawyer and that Attayee ended up having to represent himself. The court then appointed Rochman to assist in making sure Attayee had a fair trial.
“This trial was irrevocably tainted by the actions of this witness, the officer in charge and the Crown,” Chamberlain wrote, adding that he feels for the two complainants and the witnesses who stepped in to help a vulnerable woman and “now find the whole process undermined by the actions or inactions of some of the players.”
Rochman said this case highlights serious issues with Zoom trials that do not exist in physical courtrooms.
It is impossible to control what people are looking at when they are appearing on Zoom or to be sure they aren’t looking at another screen, or a phone, she said.
Zoom courts also lack the formality and solemnity of a physical courtroom, she said, though a police officer should know looking at messages and laughing in court is not appropriate.
She added that the decision should be automatically reported to police and the Crown’s office so that followup action can be looked into.
A recent Torstar investigation by Rachel Mendleson and Steve Buist found that when judges find officers have violated the rights of the accused, those decisions often fly under the radar of police forces, and even the officers themselves.
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