Posts Tagged ‘misconduct’

A wrongful conviction can be understood as the conviction of an individual of a crime that person did not commit. The “crime that person did not commit” could refer to an “actual innocence” mistake (in which the convicted offender was not even involved in the actual crime), or it could refer to a “legal innocence” mistake (in which the convicted individual was involved in the crime to a different extent than the crime represented by the charge). The wrongful conviction of innocent people has gradually been recognized over the last quarter of a century as a problem for the Canadian criminal justice system. It is extremely difficult to determine the number of wrongful convictions in Canada. A situation where an individual is found to be legally guilty of a crime he or she did not commit; and the actual perpetrator is out free in the world. For a variety of reasons a person may be wrongfully convicted of a crime he or she did not commit, and the only way to prove his or her innocence is in a court of law. One of the major aspects of wrongful convictions is the tunnel vision; it results when there is a narrow focus on a limited range of alternatives. Tunnel vision is insidious and it results in the police officer becoming so confused upon an individual or incident that no other person or incident register’s in the officer’s thoughts. Canadian wrongful conviction victims are: Donald Marshall Jr., James Driskell, David Milgaard, William Mullins-Johnson, Steven Truscott, Kyle Unger.

While conducting an initial Google search on the topic “The Role of Police in Wrongful Convictions in Canada”, a number of interesting cases emerged. One of the result was a news article published by CBC news that highlights some major cases in Canadian history. This article has twelve cases and a brief description for each case and it is fairly recent because it was updated in October/2010.
An interesting case that was found during the preliminary research done on the topic is the case of Donald Marshall Jr case. The late Mr. Marshall was as a young Aboriginal man from Nova Scotia imprisoned 11 years for a murder he did not commit. The Marshall case was the subject of the first public inquiry into a wrongful conviction in Canada. The inquiry first raised awareness about wrongful convictions and it also made important recommendations about how to prevent them in the future.

Another interesting case was found is the case of Tammy Marquardt A young single mother from Ontario who was imprisoned for 13 years for the murder of her two and one half year son on the basis of erroneous forensic pathology expert testimony that the cause of her son’s death was asphyxia.

The term miscarriage of justice is not defined in legislation, but has been broadly defined by courts to include cases “where there was no unfairness at trial, but evidence was admitted on appeal that placed the reliability of the conviction in serious doubt. In these cases, the miscarriage of justice lies not in the conduct of the trial or even the conviction entered at trial, but rather in maintaining the conviction in the face of new evidence that renders the conviction factually unreliable.” Miscarriages of justice are not limited to cases of proven or factual innocence and include both cases where there have been unfair trials or the reliability of the conviction is in serious doubt. Justice Kaufman in an important report advising the Minister of Justice whether to reopen a conviction has stressed that a miscarriage of justice would occur both if an innocent person was convicted or if new evidence could reasonably have affected the verdict. In the latter circumstances “it would be unfair to maintain the accuser’s conviction without an opportunity for the trier of fact to consider new evidence.” Thus convictions in Canada can be both re-opened and quashed on grounds short of proven innocence. In my view, this is a strength of the Canadian system given the practical difficulties of establishing innocence in a definitive manner.

The various research that has been conducted on this topic primarily focuses on the phenomenon of tunnel vision, which Margaret Beare defines in her scholarly article Shouting Innocence from the Highest Rooftop, “the single-minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably color the evaluation of information received and one’s conduct in response to the information” (Margaret Beare, 2008, p.21).
The article “Shouting Innocence from the Highest Rooftop” is Margaret Beare’s research on a project undertaken with Dianne Martin that was still incomplete at the time of the latter’s sudden death. The objective was to asses the degree to which the police had or had not implemented recommendations for changes in police procedures made by inquiries, task, forces, commissions and auditor general’s reports. The recommendations are based on wrongful convictions. The over representation of judges and lawyers in the evaluating process and the privileging of legal knowledge over social science or other scholarships appear to be endemic. It is also easier to formulate languages like “tunnel vision” and systemic missteps to characterize weaknesses in the system than to provide concrete examples how to provide those in the future. There is a tendency to revert to blaming individuals or rotten apples despite having identified the whole system per as contributing to the wrong outcome.

The idea of Noble Cause Corruption is a mindset or sub-culture which fosters a belief that the ends justify the means. In other words, law enforcement is engaged in a mission to make our streets and communities safe, and if that requires suspending the constitution or violating laws ourselves in order to accomplish our mission, then for the greater good of society, so be it. The officers who adopt this philosophy lose their moral compass. This type of thinking is misguided and places the officer at risk of losing his/her job, facing criminal charges, and seriously damaging the reputation of their agency. Some examples include: lying in court to convict a suspect, also referred to as “testifying,” planting evidence on suspects, and falsifying reports. According to Beare, the noble cause corruption when the “justice officials – in the name of getting a conviction – are prepared to violate laws, Charter protections, and any number of ethical considerations” (Beare, 2008, p.33).

Margaret Beare makes an interesting point in regards to police officers assuming innocence until proven guilty. “We ought not to wonder at the number of cases where it is revealed that the police operated from an assumption of guilt, but rather question how a justice system could have been imagined whereby officers working daily for months or even years on a case-often a horrendous crime of some sort-could be expected to try to build cases while assuming innocence.” (2008, p.33). She also points out that the theme in all of these wrongful-conviction cases is that justice is a “game that you wrap to fit your preferences, or your unconscious biases.” Therefore “shop around” and select evidence, experts, and judges based on your specific agenda” (2008, p.33). Erroneous errors in police investigations have been one of the most common causes of wrongful convictions and that behind some of these errors is a deliberate attempt to get the guy that you know to be guilty. Margaret Beare argues that wrongful convictions are caused by other issues such as systemic problems within the criminal justice system itself. She also explains that these are “problems that won’t be fixed as long as the miscarriage of justice is treated as an isolated even…wrongful convictions don’t occur in a vacuum. There are systemic reasons they go wrong” (2008, p.29). However, using the word systemic does not cure the problem.
Statistics

This topic “The role of police in wrongful convictions” relates to the idea around police deviance and accountability because Maurice Punch in his text Police Corruption: Deviance, accountability and reform in policing argues that corruption is not one thing but covers many deviant and criminal practices in policing which also shift over time. It rejects the ‘bad apple’ metaphor and focuses on ‘bad orchards’, meaning not individual but institutional failure. For in policing the organisation, work and culture foster can encourage corruption. This raises issues as to why do police break the law and, crucially, ‘who controls the controllers’? Corruption is defined in a broad, multi-facetted way. It concerns abuse of authority and trust; and it takes serious form in conspiracies to break the law and to evade exposure when cops can become criminals.

As the pace of DNA exoneration has grown across the country in recent years, wrongful convictions have revealed disturbing fissures and trends in our criminal justice system. Together, these cases show us how the criminal justice system is broken – and how urgently it needs to be fixed. In 2001, the Center on Wrongful Convictions at Northwestern Law School analyzed the cases of 86 death row exonerees. They found a number of reasons why innocent people are wrongly convicted in capital cases. Also Marvin Zalman give other factors in wrongful convictions, included in their article “Criminal Justice System Reform and Wrongful Conviction”, Which describes the nature and importance of wrongful conviction as a criminal justice policy issue, the development of an innocence movement to litigate on behalf of potential exonerees and to promote policy issues, the innocence movement’s policy and research agenda, and the very small amount of criminal justice research on the issue in comparison to legal and psychological inquiry. Wrongful Conviction as a Policy Issue: This section describes the policy salience of wrongful conviction, the nature of the emerging innocence movement, the movement’s reform and research agenda, and the limited nature of innocence research by criminologists and criminal justice scholars. “Wrongful conviction is now an issue on the public agenda. The news media, long Supportive of prosecutors, are now sensitized to miscarriages of justice, and their Continuing reports of exoneration keeps the issue in the public eye”. (Tulsky, 2006; Warden, 2003). Marvin Zalman also makes a specific points about the civil cases, fair trial rights vindicate the truth, “while government misconduct is revealed as having concealed evidence of a Person’s innocence, leading to a gross miscarriage of justice” (Garrett, 2005, p. 38). As a result of the DNA revolution, it is now thought that wrongful convictions are so frequent as to constitute a major policy concern that poses a serious challenge to the fairness and accuracy of the Criminal justice process. This article has proposed a broad research agenda addressing the new innocence movement that works to clear wrongly convicted convicts and to generate and publicize policy changes that logically should reduce miscarriages of justice.

Wrongful convictions are an inherently difficult topic to study, but the increase in exonerations over the past two decades has accentuated the need for research on how and why wrongful convictions occur. The major factor contributing to the increased discovery of wrongful convictions has been the use of post-conviction DNA examinations. Exoneration using DNA evidence have been well publicized, whereas non-DNA exoneration have typically been difficult to track, but both are important in determining the major factors behind wrongful conviction.

In conclusion, there can be no greater failure of the Criminal Justice System than to convict an innocent person. Yet we know it happens, and with greater frequency than once believed. If one extrapolates from the 197 convicted persons exonerated by DNA of serious crimes in the U.S., and the small but growing number in Canada, it is only reasonable to assume that the actual number is far greater, because of the high number of cases where DNA was not available to assist in determining the truth. This is unacceptable. Fortunately, it is possible to greatly reduce the potential for wrongful convictions. In every Canadian case discussed earlier, serious, avoidable errors were made in the police investigations (as well as by other players in the Criminal Justice System). There is now considerable research on why investigative failures leading to wrongful convictions occur, which provides the road map to preventing them. Proper recruiting and training, implementation of the major case management model, fostering a culture of excellence in ethical investigations, and ongoing education into the causes of wrongful convictions and proper investigative techniques are necessary to create an environment in which only the guilty are convicted, not the innocent. A wrongful conviction not only hurts the individual convicted, it hurts society, both in terms of the true guilty party being allowed to remain free, but also in terms of the public’s confidence in the Criminal Justice System. The police play a pivotal role in this system, and must play a similarly significant role in working to prevent wrongful convictions. The question arises, what can we as a society to do help combat wrongful convictions? Can we do anything in regards to police training?

References:

Beare, M. (2008). “Shouting Innocence from the Highest Rooftop”, in M. Beare (ed.) Honouring Social Justice. Toronto: University of Toronto Press: 17-54.

Punch, M. (2009). Police corruption: deviance, accountability and reform in policing. UK: Willan Publishing

An Introduction:

‘Agent Provocateur’ what does this mean exactly?  No, not the lingerie brand.  Obviously it relates, somehow, to police deviance.  This is a relatively obscure term used to describe a certain type of crime. An agent provocateur is created when an undercover agent has moved from a passive involvement in crime to an active involvement. This means that such an individual might (and as often is the case) not be a police officer.  The individual could be any number of things, from a police officer working undercover, to an informant who is paid or blackmailed, to a member of The Canadian Security Intelligence Agency (CSIS) — which is not a policing agency, and is not in fact required to enforce Canadian law.

Typically, an agent provocateur is a police officer that encourages others to commit crime in order for fellow police officers to arrest said guilty parties.  These encouragements can vary depending on circumstance. They could be crimes of themselves.  And the encouragements enacted by the police officer universally stray in to that legal gray area known as entrapment – whether the act of encouraging itself is a crime or not.

A little context is, perhaps, in order.

Grant Bristow and Operation Governor:

When we speak of agents provocateur, it is important to note that agents provocateur are not a new phenomenon in Canadian legal history.

Historically, we also have the case of Grant Bristow, a former CSIS agent who worked with the Canadian chapter of the Aryan Nations.  Unfortunately, the only comprehensive resource on Grant Bristow comes from Wikipedia.  Although we do have fellow blogger, Ezra Levant‘s commentary on the matter, as well as Bristow’s interview with The Walrus to draw on. Less user-friendly is a SIRC report written in 1994 investigating CSIS and Bristow’s role in the Heritage Front Affair.

Regardless, in this case the Wiki article seems to be quite succinct on the subject of Grant Bristow according to my subsequent research.
Grant Bristow
Grant Bristow was an informant employed by CSIS who worked closely with the eventual leader of the Canadian Aryan Nations front, Wolfgang Droege in the ’80s. He has spoken to the fact that his ties with Droege allowed him to prevent various horrific acts of violence, including bombings and riots. However, further investigation has revealed that his placement as Droege’s right hand man may have been what allowed the organization to continue its operations when Droege assumed leadership. The purpose of Bristow’s infiltration was to identify the financial supporters of the Canadian Chapter of Aryan Nations. However, it was upon the impending arrest of Droege (on unrelated charges of assault) and Bristow’s subsequent departure of Aryan Nations in March 1994, that the Front disbanded.  Bristow was forced to step down, because if he had not, he would have become the de facto leader of the chapter.

In 1994, Toronto Sun reporter Bill Dunphy released an expose on Operation Governor; sadly this news article is not available on the newspaper’s website.  Without a copy, what can be said about it is this: the article negatively exposed CSIS’s role in the Heritage Front/Operation Governor Affair and ousted Grant Bristow as the agent in question.

In September 2004, Bristow sat down with the Walrus and narrated his own perspective of the operation.

Bob Lambert:

Robert Lambert

Dr. Robert Lambert is currently the co-director of the European Muslim Research Centre at the University of Exeter. He also lectures at the Centre of the Study of Terrorism and Political Violence at the University of St. Andrews. He was a former officer employed by the London Metropolitan Police from 1980-2008. He is the author of Countering Al Qaeda in London: Police and Muslims in Partnerships. He was inducted as a Member to the Most Excellent Order of the British Empire in 2008, for his work as a police officer.

Under the false identity “Bob Robinson,” Lambert infiltrated various environmental, animal rights, and anti-racist activist groups. I bring this case up not as a discussion of agents provocateur, but to highlight a similar issue found in the Kennedy case below: Lambert instigated an 18 month relationship with a London Greenpeace activist in an attempt to gain credibility in his undercover role. While police chiefs claim that undercover officers are expressly forbidden from engaging in sexual relations with activists, other undercover officers have come forward to say that sex is most definitely used as a tool to gain trust.

Although Lambert has never been accused of being an agent provocateur, he currently is under investigation by the Metropolitan Police in regards to whether or not he was prosecuted under his assumed identity, while undercover.

Robert Lambert

Montebello:

The Montebello Incident involved the Sûreté du Quebec using three undercover officers to infiltrate the anti-Security and Prosperity Partnership (SPP) of North America protests. The SPP was an open dialogue between Canada, America, and Mexico with the purpose of enhancing trade, sharing intelligence, cooperation, environmental protection, and economic stability between the three nations. The SPP was meant to exist alongside institutions such as the North American Free Trade Agreement. The SPP was cancelled in August 2009.

In the above video, peaceful demonstrators are protesting the SPP at the North American leaders’ summit in Montebello, Quebec. The above video shows Dave Coles (president of the Communications, Energy and Paper Workers Union) ordering three masked men, who were later revealed as undercover SdQ officers, to leave. In August 2007, the SdQ admitted to its involvement.

Informants:

To further broaden our look into agents provocateur: the issue of informants is paramount.  Mother Jones offers are clear and frank exploration of the use of informants from the American perspective in its September/October 2011 article “The Informants”.  From the Canadian perspective, we have the work of Mathilde Turcotte and his study of police informants and their handlers in Quebec, in the article “Shifts in Police-Informant Negotiations.”

From the Canadian perspective we have the following: police are required to actively seek out and maintain a network of informants without much leverage.  Typically, informants are gathered through actions such as bribes, blackmail, and “flipping.” “Flipping” is where a criminal is given the opportunity to “work off” his crimes through aiding in police investigations. Blackmail is the threat of legal action before an informant is charged. This could include issues of immigration.  However, in Canada, police have no real control over the reciprocity process.  In order to prevent the abuse of power on part of the police, outside agencies have control over the reciprocity process. This creates a unique situation where the informant could gain leverage over his handler, and make demands in return for cooperation. This also puts the handler in jeopardy during the bargaining process, because he cannot be certain that any promises he makes to an informant will be carried through.

As the informant gains more power in his relationship with his handler, it is often the case that he works outside his orders and without confirmation or approval.  An example provided by Turcotte involves an informant, while wearing a wire, attempting to entrap a contact in a drug deal.  This was outside the scope of the informant’s directions, and completely illegal — any evidence he might have gathered would have been inadmissible in court.  As a civilian agent, he was not aware that his actions constituted entrapment. Fortunately, the contact did not accept the deal; if he had, the ramifications are impossible to predict, although it could be said with certainty that the Police would not have come out of it with high public opinion.

Mother Jones also brings up the issue of wires and undercover operations, in the context of terrorist sting operations.  The concern raised here is that, while technology advances further and has allowed for virtually undetectable recording devices, there are still many incidents of key interactions not being recorded. The law enforcement side of the debate offers the excuse of “technical difficulties,” while the pragmatic approach is simply one of convenience. Certain conversations are not recorded because it is “inconvenient” for the agency that they are on record.

Mark Kennedy:

Mark Kennedy

Mark Kennedy is a former London Metropolitan police officer who worked undercover for seven years, between 2003 and 2010, infiltrating various activist groups across Europe. Most recently, he was involved in the case of 20 activists convicted of conspiracy to commit aggravated trespass at the Ratcliff-on-Soar Power Station. However, this conviction was overturned on Tuesday, July 19, 2011. Three appeal court judges ruled that a grave miscarriage of justice had occurred when audio evidence Kennedy had collected during the activists’ meetings was not disclosed by prosecution. The audio evidence showed Kennedy “was involved in activities which went much further than the authorization he was given, and appeared to show him as an enthusiastic supporter of the proposed occupation of the power station and, arguably, an agent provocateur.”

Kennedy’s involvement in the planned occupation of the Power Station was not passive. He recruited, drove reconnaissance, and offered financial backing. In total, 114 individuals were arrested when they gathered for a meeting in April 2009. When Kennedy’s involvement in the group as an undercover officer was exposed, he faced harsh denouncement from the activists he had infiltrated, who had considered him a close friend and confident. They express feelings of violation and betrayal. Kennedy also faces allegations that he had used sex as a means to gain trust and information while under cover.

In response to this controversy, Kennedy claims that “he was mishandled by senior officers and has been hung out to dry.” Interesting, in that this is a technique of neutralization. In the field of sociology, we would describe this as shifting blame to a higher power – in this case Kennedy’s superiors. Although it is important to qualify that what he has to say is quite logical. And not unexpected when, often, police institutions seek to single out the blame and distance the institution itself from corruption.
http://c.brightcove.com/services/viewer/federated_f9?isVid=1
Seven inquiries have been launched in regards to Kennedy’s infiltration and the prosecution of the activists.  In total, of the 114 individuals arrested, none have been convicted.

Analysis:

Undercover officers – what do they mean for police and police deviance?  Maurice Punch (2009), in his book Police Corruption: Deviance, accountability, and reform in policing, tells us time and again to look not at the “bad apples,” but the “bad barrels” and “bad orchards” (p. 48), meaning: look at the situation, circumstance, and environment surrounding police that might lead them to corruption. Undercover officers work with, more often than not, criminals; to put it plainly, an officer is expected to infiltrate suspected criminal groups with the intent of gathering evidence (we hope) against these criminals that can be used to bring them to justice.  It is most definitely a dirty job. Getting ‘street cred’ alone usually requires some sort of criminal act.  This common theme of “credibility” or “trust” or “information” is found in the cases of Bristow, Lambert, Kennedy, and Mother Jones’s “The Informants.” In the cases of Kennedy and Lambert, we are further introduced into the idea of sexual encounters as a point of leverage. Morals are pushed and boundaries are reformed. It is natural to assume that somewhere along the line ‘the end justifies the means.’

Gary T. Marx asks us to explore the origins and motives of informants, what they do in radical groups, and factors that enable their transformation into agents provocateur (n.d.).

This leads us first to look our cases of undercover officers as informants, identify some of the motives and concerns that might have lead them to become agents provocateurs.

Bristow’s case is interesting because, as an informant working for CSIS, he is in a different position than the others, who were actual police officers. Bristow had no overarching mandate to uphold the law. And he was tasked with uncovering the financial supporters of Aryan Nations. In his quest to do so he developed a strong relationship with Wolfgang Droege. The maintenance of that relationship required Bristow to act the part of a supporter of the white supremacist cause.  This was an “ends justify the means” situation. Or we could call it a type of Nobel Cause or Dirty Harry corruption.  Maurice Punch describes these types of corruption as specific types of police deviance, however in this case we can apply them to Bristow.  Bristow did not believe in the cause of white supremacy, yet he assumed the guise of such in his undercover role.

The SdQ undercover officer’s roles in the Montebello incident are most definitely Nobel Cause or Dirty Harry corruption. However, as SdQ is a police agency, with a legal mandate to uphold Canada’s law, we have the further issue of Accountability.  Attempting to provoke or incite violence for whatever purpose is illegal. In some cases it could be considered entrapment.  However, it is important to note that Entrapment is only a defense at law; it is not in itself illegal. (Robichaud’s Criminal Defence Legislation blog offers a clearly defined explanation of entrapment if you are so interested.)  The SdQ’s actions at Montebello neatly fall into the definitions of entrapment, although in this case the protesters resisted incitement.  Although no violence occurred, why were the police not held accountable for their actions? If Droege had been prosecuted for his involvement with the Aryan Nations Front, would he have been able to plead entrapment? The role of the agent provocateur is a convoluted one.

In the study of agents provocateur and their roles in undercover operations, the issue of accountability continues to raise its head. There is a certain “legal gray area” that clouds the use of informants and the use of police undercover agents. We can identify some of the motives of agents provocateur, chiefly the types of corruption Maurice Punch labels as Noble Cause, or Dirty Harry corruption.  We cannot, however identify the solution to agents provocateur, because there is so little investigation into the use of them, and there is no transparent accountability structure in place.  CSIS informants hide behind the veil of “National Security.”

Further, what are the ramifications of the agent provocateur? As eluded to above, and as found conclusively in the case of Mark Kennedy, the identification of an agent provocateur can, and will, lead to acquittal.  So what then, makes an individual decide to jeopardize any possible legal action by inciting crime? In Bristow’s case, his purpose was not to arrest Droege – or anyone for that matter. He was tasked with identifying certain individuals and he had no interest in criminal charges.  We see a similar theme in Lambert’s and Kennedy’s situations – they were tasked with gathering information, as well. Is there a distinction between “information gathering” and “nailing the bad guy for a crime”? The literature on police deviance would suggest not.  Mathilde’s and Mother Jones’s articles both allude to the situation of the informant as key to the creation of the agent provocateur.

To look at the cases of Lambert and Kennedy again: I bring them up together because they share similar themes. While Lambert’s case was not one of the agent provocateur (he was an undercover police officer and is currently under speculation for false testimony, not inciting crime), both he and Kennedy were deep undercover agents who operated for years. They created intense interpersonal relationships with the people they were tasked to observe. And they both faced harsh criticism for they duality. They are also both former police officers. Under Peel’s principles that “the police are the public and the public are the police,” we have a concern. The controversy these two individuals are involved in seriously affects the relationship between the public and the police.

Ultimately, the damage the agent provocateur does, to the public and the agency to which he or she belongs, seems to outweigh any benefit. And yet, still these instances occur. What is so very tempting in tempting others into crime?

References:

Marx, G. (n.d.). “Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant,” American Journal of Sociology 80(2): 402-442.

Punch, Maurice. (2009). Police Corruption: Deviance, accountability, and reform in policing. Portland, Oregon: Willan Publishing.

Turcotte, Mathilde. (2008). Shifts in police-informant negotiations. Global Crime, 9(4), 291-305. doi: 10.1080/17440570802543508.

And all the electronic resources cited here-above.

To expand my previous definition, an agent provocateur is created when an undercover agent has moved from a passive involvement in crime to an active involvement. This means that such an individual might (and as often is the case) not be a police officer.  The individual could be any number of things, from a police officer working undercover, to an informant who is paid or blackmailed, to a member of The Canadian Security Intelligence Agency (CSIS) — which is not a policing agency, and is not in fact required to enforce Canadian law.

When we speak of agents provocateur (AP), it is important to note that AP’s are not a new phenomenon in Canadian legal history.  Although, generally, the newer cases of Montebello and Toronto G20 come to mind.

Historically, we also have the case of Grant Bristow, a former CSIS agent who worked with the Canadian chapter of the Aryan Nations.  Unfortunately, the only comprehensive resource on Grant Bristow comes from Wikipedia.  Although we do have fellow blogger, Ezra Levant‘s commentary on the matter, as well as Bristow’s interview with The Walrus to draw on. Less user-friendly is a SIRC report written in 1994 investigating CSIS and Bristow’s role in the Heritage Front Affair.  Interesting to note is that as I write, this website seems to be no longer available. I will have to look into it.

Irregardless, in this case the Wiki article seems to be quite succinct on the subject of Grant Bristow according to my subsequent research.

Grant Bristow and Operation Governor:
Grant Bristow Undercover Grant Bristow was an informant employed by CSIS who worked closely with the eventual leader of the Canadian Aryan Nations front, Wolfgang Droege in the ’80s. He has spoken to the fact that his ties with Droege allowed him to prevent various horrific acts of violence, including bombings and riots. However, further investigation has revealed that his placement as Droege’s right hand man may have been what allowed the organization to continue its operations when Droege assumed leadership. The purpose of Bristow’s infiltration was to identify the financial supporters of the Canadian Chapter of Aryan Nations. However, it was upon the impending arrest of Droege (on unrelated charges of assault) and Bristow’s subsequent departure of Aryan Nations in March 1994, that the Front disbanded.  Bristow was forced to step down, because if he had not, he would have become the de facto leader of the chapter.

In 1994, Toronto Sun reporter Bill Dunphy released an expose on Operation Governor, sadly this news article is not available on the newspaper’s website.  Without a copy, what can be said about it is this: the article negatively exposed CSIS’s role in the Heritage Front/Operation Governor Affair and ousted Grant Bristow as the agent in question.

In September 2004, Bristow sat down with the Walrus and narrated his own perspective of the operation.

Montabello:

The Montebello Incident involved the Surete du Quebec using three undercover officers to infiltrate the anti-Security and Prosperity Partnership (SPP) of North America protests. The SPP was an open dialogue between Canada, America, and Mexico with the purpose of enhancing trade, sharing intelligence, cooperation, environmental protection, and economic stability between the three nations. The SPP was meant to exist along side institutions such as the North American Free Trade Agreement. The SPP was canceled in August 2009.

In the above video, peaceful demonstrators are protesting the SPP at the North American leaders summit in Montebello, Quebec. The above video shows Dave Coles (president of the Communications, Energy and Paperworkers Union) ordering three masked men, who were later revealed as undercover SdQ officers, to leave. In August 2007, the SdQ admitted to its involvement.

Tying into the Study of Police Deviance…:

If we take Grant Bristow’s work with Aryan Nations as a true example of an agent provocateur (it, of course has not been labeled as such by law – which brings about issues of accountability to be discussed below) and the police involvement of the Montebello incident, we have two examples of the use of Agent Provocateurs. Gary T. Marx asks us to explore the origins and motives of informants, what they do in radical groups, and factors that enable their transformation into agents provocateur (n.d.).

This leads us first to look at Bristow and the SdQ undercover officers as informants, identify some of the motives and concerns that might have lead them to become agents provocateurs.

Bristow’s case is interesting because, as an informant working for CSIS, he is in a different position than the undercover SdQ officers. Bristow had no overarching mandate to uphold the law. And he was tasked with uncovering the financial supporters of Aryan Nations. In his quest to do so he developed a strong relationship with Wolfgang Droege. Maintaining that relationship required him to act the part of a supporter of the white supremacist cause.  This was an “ends justifies the means” situation. Or we could call it a type of Nobel Cause or Dirty Harry corruption.  Maurice Punch describes these types of corruption as specific types of police deviance, however in this case we can apply them to Bristow.  Bristow did not believe in the cause of white supremacy, yet he assumed the guise of such in his undercover role.

…and Accountability:

The SdQ undercover officer’s roles in the Montebello incident are most definitely Nobel Cause or Dirty Harry corruption. However, as SdQ is a police agency, with a legal mandate to uphold Canada’s law, we have the further issue of Accountability.  Attempting to provoke or incite violence for whatever purpose is illegal. In some cases it could be considered entrapment.  (Robichaud’s Criminal Defense Legislation blog offers a clearly defined explanation of entrapment if you are so interested.)  The SdQ’s actions at Montebello neatly fall into the definitions of entrapment, although in this case the protesters resisted incitement. Although no violence occurred, why were the police not held accountable for their actions?

Informants:

To further broaden our look into APs: in my own opinion, the issue of informants is paramount.  Mother Jones offers are clear and frank exploration of the use of informants from the American perspective in its September/October 2011 article The Informants.  From the Canadian perspective, we have the work of Mathilde Turcotte and his study of police informants and their handlers in Quebec, in the article “Shifts in Police-Informant Negotiations.”

From the Canadian perspective we have the following: police are required to actively seek out and maintain a network of informants without much leverage.  Typically, informants are gathered through actions such as bribes, blackmail, and “flipping.” “Flipping” is where a criminal is given the opportunity to “work off” his crimes through aiding in police investigations. Blackmail is the threat of legal action before an informant is charged. This could include issues of immigration.  However, in Canada, police have no real control over the reciprocity process.  In order to prevent the abuse of power on part of the police, outside agencies have control over the reciprocity process. This creates a unique situation where the informant could gain leverage over his handler, and make demands in return for cooperation. This also puts the handler in jeopardy during the bargaining process, because he cannot be certain that any promises he makes to an informant will be carried through.

As the informant gains more power in his relationship with his handler, it is often the case that he works outside his orders and without confirmation or approval.  An example provided by Turcotte involves an informant, while wearing a wire, attempting to entrap a contact in a drug deal.  This was outside the scope of the informant’s directions, and completely illegal — any evidence he might have gathered would have been inadmissible in court.  As a civilian agent, he was not aware that his actions constituted entrapment. Fortunately, the contact did not accept the deal; if he had, the ramifications are impossible to predict. Although it could be said with certainty that the Police would not have come out of it with high public opinion.

Mother Jones also brings up the issue of wires and undercover operations, in the context of terrorist sting operations.  The concern raised here is that, while technology advances further and has allowed for virtually undetectable recording devices, there are still many incidents of key interactions not being recorded. The law enforcement side of the debate offers the excuse of “technical difficulties,” while the pragmatic approach is simply one of convenience. Certain conversations are not recorded because it is “inconvenient” for the agency that they be on record.

Conclusions:

In the study of agents provocateur and their roles in undercover operations, the issue of accountability continues to raise its head. There is a certain “legal gray area” that clouds the use of informants and the use of police undercover agents. We can identify some of the motives of AP’s, chiefly the types of corruption Maurice Punch labels as Noble Cause, or Dirty Harry corruption.  We cannot, however identify the solution to APs, because there is so little investigation into the use of APs, and there is no transparent accountability structure in place.  CSIS informants hide behind the veil of “National Security.” Police provocateurs have not been legally identified in contemporary cases involving clear incitement.

References:

Marx, G. (n.d.). “Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant,” American Journal of Sociology 80(2): 402-442.

Turcotte, M. (2008). Shifts in police-informant negotiations. Global Crime, 9(4), 291-305. doi: 10.1080/17440570802543508.

And all the electronic resources cited here-above.

In recent years, many media reports and public movements have criticized the practice of  police organizations investigating their own colleagues in cases of alleged misconducts or corruption. This topic is significant because it involves the police organization, the victims and public.

First of all a number of high-priority cases, throughout 2004 to 2007, caught the attention of Commission for Public Complaints against RCMP organization and they believed that these cases indicate the practices of police investigating police is inadequate and prone to bias. The cases were scattered across Canada which also proves that this matter is extremely significant and frequent. The notion of police force seriously investigating their own colleagues is often a deception. In reality, no police officer would want to investigate and challenge their fellow colleague’s decision of breaching the law when they should be supporting instead; thus lies the problem.

With numerous cases scattered across the country regarding alleged police misconduct, many individuals won’t have much confidence towards police force. This matter is important because without an organization watching over the police force for proper measures and actions, the public’s confidence can only decrease with the poor image the police are giving to the public in relation to their incompetence in keeping the streets and community safe. If the public don’t have confidence in the police force, the public may take matters into their own hand which may violate the law. To them, they may think that since the police force isn’t following the law, why should they do it too? As a result, many vigilantes may form and commit crimes.

With the police culture of supporting your police unit, no member would betray the culture and work against the unit. The consequences of working against the unit can vary from stigmatization, total isolation, or serious violence. According to the rule of silence in police culture, where police members will distort the truth for another member’s benefit, it is fairly difficult to perform a proper investigation of the incident by the same organization. Without a proper investigation, the families of the victim and the public won’t get a proper explanation as to why their loved ones were shot or injured by the ones who suppose to protect them.

Few provinces have started setting up a privatized organization, ran by people who are former officers that are familiar to the protocols yet not-related to the police organization, which deals with complaints and concerns regarding police misconduct or corruption. As a result, with this newly created organization, the practice of police investigating police will end. Better yet, the public may gain some confidence back knowing that police individuals can be held accountable for their actions and justice is served.

As I began my preliminary research about my topic on the Google search engine, about 64,700,000 results were listed within 0.09 seconds. In the beginning I was expecting for a Wikipedia result, as I looked at the first page of my result no Wikipedia site showed up but a government site and a few multimedia newspaper website appeared. The first three results on the first page were all from a government site ran by the organization called, Commission for Public Complaints against RCMP (CPC).

First CPC link took me to their site that gave me a general overview of each activity happening inside the CPC regarding RCMP investigations from year 2007 to 2009. The second link from the CPC website contained a few paragraphs that explain why the CPC organization was created in the first place.

The third CPC link directed me to a page where A Final Public Report was published by the Chair of CPC. As the beginning paragraph illustrates, the Chair of CPC launched a Chair initiated complaint and public interest investigation on November 2007 and the purpose of the investigation was to tackle the matter where unknown RCMP individuals were undergoing criminal investigations of their colleagues involving serious injury or death that took place in April 2002 and March 2007 (Commission for Public Complaints Against RCMP, 2009). The whole report discussed some categories that were reviewed in some case files and the kinds of model CPC recommended for RCMP member investigations.

Next link from the results is an article from ChronicleHerald.ca from Nova Scotia and it illustrates that Nova Scotia will not allow cops investigating cops anymore (Jackson, 2011). Furthermore, with this new investigative unit called Serious Incident Response Team (SIRT) it will soon begin investigating police individuals and their actions that lead to victims with serious injury or death and etc. The article also explains the new head members and what kind of member the SIRT will consist of in order to make the unit run perfectly.

The fifth link from my search result is from a site called, Canada.com. The site consisted of numerous paragraphs illustrating why police investigating police shootings is wrong. Throughout the reading of the paragraphs the author referred a case involving Khadija Bennis’s twin brother’s death, Mohamed Anas Bennis, whom was shot by a Montreal police officer in 2005. The author uses Bennis’s case to argue and question the procedures of investigating an alleged police individual’s misconduct and suggest the province to begin improving in order to avoid future incidents (The Gazette, 2007).

And lastly, my last link regarding police investigating police in Canada is from a website called, Themarknews.com. The article describes how two unrelated individual deaths in Montreal, Mario Hamel and Patrick Limoges; as well as the death of Mohamed Anas Bennis in 2005 and the death of teenager Fredy Villanueva in 2008, triggered this opportunity where Quebec shall begin creating a civilian investigative unit for cases that involve policing misconduct or corruption.

After going through these articles, I begin to think that most of the authors of these articles have done extensive research on cases involving police deviance. Reading through their articles, they seem to agree that police investigating police obviously don’t work well; and moreover, most suggest a separate investigative unit with no relation to the police organization itself be created to conduct an investigation with the alleged police individual who caused serious injury or death.

The Role of Police in Wrongful Convictions in Canada

The wrongful conviction of innocent people has gradually been recognized over the last quarter of a century as a problem for the Canadian criminal justice system. It is extremely difficult to determine the number of wrongful convictions in Canada. One of the major aspects of wrongful convictions is the tunnel vision; it results when there is a narrow focus on a limited range of alternatives. Tunnel vision is insidious and it results in the police officer becoming so confused upon an individual or incident that no other person or incident register’s in the officer’s thoughts.

While conducting an initial Google search on the topic “The Role of Police in Wrongful Convictions in Canada”, a number of interesting cases emerged. One of the result was a news article published by CBC news that highlights some major cases in Canadian history. This article has twelve cases and a brief description for each case and it is fairly recent because it was updated in October/2010.

An interesting case that was found during the preliminary research done on the topic is the case of Donald Marshall Jr case. The late Mr. Marshall was as a young Aboriginal man from Nova Scotia imprisoned 11 years for a murder he did not commit. The Marshall case was the subject of the first public inquiry into a wrongful conviction in Canada. The inquiry first raised awareness about wrongful convictions and it also made important recommendations about how to prevent them in the future.

Another interesting case was found is the case of Tammy Marquardt A young single mother from Ontario who was imprisoned for 13 years for the murder of her two and one half year son on the basis of erroneous forensic pathology expert testimony that the cause of her son’s death was asphyxia.

These two case studies illustrate the two main ways that wrongful convictions are revealed in Canada. Donald Marshall’s murder conviction was overturned after the federal Minister of Justice granted his petition for a new appeal on the basis of fresh evidence and after Marshall had exhausted appeals all the way to the Supreme Court of Canada. Tammy Marquardt’s wrongful conviction was overturned when the Supreme Court of Canada granted her leave to make a late and normally out of time appeal. The Court of Appeal then held that the murder conviction could was a miscarriage of justice in light new forensic pathology evidence that the case of death was not asphyxia but unascertained. A new trial was ordered, but the prosecutor withdrew charges and the trial judge apologized for what happened to Ms. Marquardt and her son. Both Marquardt and Marshall were granted bail pending their new appeal based on fresh evidence.

The police play a critical role in almost all wrongful convictions. In the Donald Marshall Jr. case discussed above, the police virtually framed Donald Marshall, using oppressive tactics against young and unstable witnesses until they were prepared to perjure themselves and falsely testify that they saw Marshall stab Seale. The local police also persisted in their belief that Marshall had to be guilty even after a companion of the real killer came forth shortly after Marshall’s 1971 conviction and told them that Marshall was innocent. Police influence and participate in witness error in two ways: by failing to detect it when a witness first offers it, or by deliberately forcing or encouraging a witness to change his or her testimony. Police failure to detect witness error is often a product of tunnel vision: if the misleading evidence fits police theory or biases, it may not be rigorously examined. All the articles that were found during the preliminary research; none of them had any response from the police in them. Something that was noticeably missing is that there was nothing mentioned about the police apology.

The role of police in wrongful convictions has been a heated debate for many years in Canada. Several high-profile cases have been in the media involving wrongful convictions in our courts. Following these cases, several high-end inquiries have taken place that have looked into the circumstances that produced these wrongful convictions, including police negligence, wrongdoing, and tunnel vision. One of the major aspects of wrongful convictions is tunnel vision; which is when the police focus their investigation towards one individual, and tend to forget about other possible suspects. They focus all their man power into convicting one person of interest while completely forgetting about other possibilities.
A wrongful conviction is exactly how it sounds, someone is wrongfully convicted of a crime that they did not commit, and the actual perpetrator is out there with his/her freedom. There have been many wrongful convictions that have made it to the spotlight, there are probably hundreds of others that still are forgotten. Many of these convictions were during the pre-DNA era, prior to the use of DNA testing. This is a common trend through many of the wrongful convictions that have occurred in Canada’s history. Many people were wrongfully convicted due to misconduct and lack of knowledge by the police.
While conducting an initial Google search on the topic “The Role of Police in Wrongful Convictions in Canada”, a number of interesting cases emerged. Several articles, some up to 90 pages in length, are present, and help showcase some of the reasons behind the wrongful convictions. Some of these articles including “Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System” by Bruce MacFarlane give some insight into tunnel vision experienced by the police. Where they focus only on one suspect and work extremely hard to put them behind bars while forgetting about potential others.
Another result was a news article published by CBC news that highlights some major cases in Canadian history. It looks at twelve cases throughout Canada’s history and gives a brief description followed by an outcome. This article is written from the media’s perspective and no comments from the police are noted. Along with the other results this one is fairly recent, only a year old. It helped broaden my search on the topic by focusing on some of the major convictions that were overturned due to them being wrongful. It also gave me a case list of potential exploration on the topic for the future.
An interesting case that was found during the preliminary research done on the topic is the case of Ivan Henry. Ivan Henry was convicted of a number of sexual assaults in the 1980’s in Vancouver, and has spent 27 years in prison because of it. One of the key points resulting in his conviction was the victims identifying him from a photograph of a police line-up. Here is the photograph: Ivan Henry Police Lineup
One can clearly see why the victims chose him, because he is the one in a headlock and appears to be wild, unlike the other suspects who are all police officers with smiles on their faces. Now the question arises why were the police officers allowed to unjustly play games with this man’s future? It is clear that they are not taking their occupation seriously in this manner, and should have been reprimanded for their actions. These types of stories highlight the role of police in wrongful convictions. Some police officers engage in misconduct and have the potential to jeopardize the life’s of innocent citizens.
Another interesting case and the only Wikipedia link in the results was the case of Donald Marshall Jr. Though it was fairly short it provided some insight into the case, and gave another example of the role of police in wrongful convictions. In this case the police had a predetermined notion that Marshall was the killer. Even though the true killer had admitted to the stabbing, he later lied about his role to police. Donald Marshall Jr. was already known to police and therefore the police focused on him and became victims of tunnel vision focusing just on him and not other possible suspects. Unfortunately for Mr. Marshall he was released after serving 11 years of his prison sentence, which was life imprisonment. If it was not for a witness coming forward it is still possible the Mr. Marshall could still be in prison. A majority of the results where articles that were written by University professors, and a couple of media articles but none of them had any response from the police in them. None of the search results yielded a police apology or mentioned any investigation to be completed.