David G. Bayliss Professional Corporation

David G. Bayliss Professional Corporation

July 31, 2015 16:13 ET

Toronto Defence Lawyer David G. Bayliss Calls for Changes to Police Misconduct Disclosure System

Toronto criminal defence lawyer David G. Bayliss warns that the system for disclosure of police misconduct history is broken in Ontario courts and calls for improved oversight and full disclosure of disciplinary records of all police witnesses.

TORONTO, ONTARIO--(Marketwired - July 31, 2015) - According to prominent Toronto criminal defence lawyer David G. Bayliss (www.davidgbayliss.com), "the system for disclosure of police misconduct records is broken." Bayliss believes there are inherent problems with letting police officers write their own disciplinary history reports when they appear before the courts as witnesses in criminal cases in Ontario. Concerned about how police witnesses can negatively impact criminal cases by failing to reveal full details of their disciplinary history, he calls for improved oversight and full disclosure of disciplinary records of all material police witnesses.

The current system of disclosure of police officer disciplinary records has been in effect since 2009 when the Supreme Court of Canada ruled that investigating police must advise prosecutors of any serious misconduct that could reasonably impact the case against a defendant, so that the judge or jury will have the information to properly assess police witness credibility. While the precise form of disclosure of misconduct records varies from force to force, the process generally involves the production of a single-page document called a McNeil report, named after the Supreme Court case mandating such disclosure. Bayliss believes that there is a serious problem with that. "There is little oversight when we allow police officers to write their own reports. There is nothing to prevent officers from glossing-over or understating criminal convictions or instances of discreditable conduct. Rather, there is a built-in incentive not to disclose serious infractions," says Bayliss.

The recent criminal case of R. v. Collin Taylor is an example of how a police witness can affect the outcome of a trial by providing a misleading or incomplete McNeil report. Mr. Taylor had been charged with gun and drug offences and was represented by Mr. Bayliss. While preparing Taylor's defence, Bayliss became suspicious of the McNeil report submitted by a police witness. Bayliss requested source materials for the misconduct findings against the officer, including disciplinary decisions from the Toronto Police Services Board disciplinary tribunal. Bayliss discovered alarming inconsistencies between the tribunal decisions and what had actually been disclosed by the officer in the McNeil report. During the course of the trial, Bayliss also discovered that the prosecution had, at the request of the officer himself, withheld information about a finding of guilt for assault. Bayliss called into question the serious inconsistencies and omissions in the officer's McNeil report. In her ruling, the judge commented that the McNeil report was "materially misleading" to the court and that, by submitting an inaccurate account of his police record, his creditability as a witness was severely undermined. She did not believe that the officer was truthful in his testimony. All charges against Taylor were dismissed. Bayliss pointed out that the result in the case might very well have been different had the truth about the officer's disciplinary history not been discovered.

"The Taylor case raises serious questions about how the courts handle police misconduct records. This case demonstrates that a defence lawyer cannot accept a McNeil report of a significant police witness at face value. The disclosure regime lacks integrity. To properly do their jobs, defence lawyers need an officer's full disciplinary record disclosed, not just a one-page report. It is unknown how many prior criminal convictions may be unsafe because courts have been unable to accurately assess the accuracy of an officer's testimony," warns Bayliss.

Bayliss stresses that, to avoid errors in the future, the process of disclosure of prior misconduct of police witnesses must be brought into line with disclosure practices that pertain to other evidence in criminal cases. Said Bayliss, "Until now, defence lawyers accepted McNeil reports as accurate. This was a compromise based on trust. Sadly, that trust has been breached in the most fundamental way, it seems, in hundreds of cases. From now on I want the source documents and so should every defence lawyer."

About David G. Bayliss Professional Corporation: With over 30 years experience as a Toronto criminal defence attorney, David G. Bayliss has handled hundreds of jury and non-jury trials with an exceptional rate of success. An expert in Canadian criminal law, he understands that different cases require different approaches and his Toronto law firm provides a quality, personalized legal defence for each client. He believes that those charged with crimes deserve strong and competent representation. David has successfully defended clients against criminal charges of murder, sexual assault, drug possession, drug trafficking and importing, domestic assault, theft, gun possession, robbery with a firearm and fraud, and is highly experienced defending clients whose Canadian Charter of Rights and Freedoms rights have been violated. For more information call the David G, Bayliss criminal defence team at 416-598-5250 or email david@davidgbaylisslaw.com.

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