Ontario judge calls out OPP officer for ‘indifference to the truth’Evidence provided by Constable Mark Kowalyk in a drunk-driving case was so troubling, Ontario Court Justice Melvin Green rebuked the rookie for his “indifference to the truth.”
By the time he stepped off the witness stand, even OPP Const. Mark Kowalyk had to admit there were serious problems with his testimony.His written report that the driver he arrested had “cut off motorists” while speeding down the 401? False, Kowalyk conceded in court.False, too, was his report in an OPP detachment log book stating he had checked in on the arrested driver in his cell every 15 minutes, as required; video played at the trial showed otherwise.
Indeed, Kowalyk’s evidence in the case against Delon Joseph, accused of two impaired-driving offences, was so troubling Justice Melvyn Green this week rebuked the rookie officer for his “indifference to the truth.”
In an October 28 Ontario Court of Justice ruling, Green stated that aspects of Kowalyk’s testimony were “increasingly preposterous,” at one point calling part the officer’s account “fraud.”
“More than once Kowalyk made factual assertions under oath from which he was forced to resile in the face of contrary video evidence,” Green wrote.
Joseph, who faced two impaired driving charges, was found not guilty.
Kowalyk could not be reached for comment. OPP spokesperson Sgt. Peter Leon said the officer would not be responding on the advice of his supervisor.Despite the seriousness of the judge’s ruling — and the fact that it uncovered the false recording of a prisoner check, an offence punishable under the Police Services Act — the OPP is refusing to say if it is investigating the officer’s conduct.
Following a Star investigation into police who lie in court http://www.thestar.com/news/investigations/police_who_lie.html
, Ontario’s Ministry of the Attorney General produced rules requiring the Crown to report cases where a judge has found, or the judge suspects, that an officer lied. The director of Crown operations will then review the matter and decide if it should be forwarded to the police force in question, which may prompt an internal probe.
But the ministry is refusing to say if that occurred in this case. The Crown, Crystal Tomusiak, referred questions to ministry spokesperson Brendan Crawley, who said in an email that “the ministry does not comment on whether such reviews are undertaken in specific matters, or the results of any such review.”
Asked to justify why the ministry could not provide information on individual cases, Crawley said: “We will not be making any further comment.”
Leon would not say whether the case had been sent to the OPP by the ministry. “I’m not in a position to confirm or deny,” he said.The secrecy leaves the public in the dark about what is being done to ensure lying officers are held to account.
Anthony Moustacalis, president of the Criminal Lawyers’ Association, said he understands that, at times, investigations involving personnel must be held in private.
However, “at some point, even respecting individual rights, there needs to be public access and openness about the fact that specific concerns were raised, who they involve, if they have been resolved and how they have been resolved,” he said.
The case dates back to the morning of April 14, 2013, when Kowalyk and a fellow OPP officer observed Joseph driving east on Highway 401. Joseph was speeding at a rate of 152 kilometres per hour, according to Kowalyk.
The officer pulled Joseph over, and later said he observed the smell of alcohol, red eyes, and that Joseph was fumbling with documents in his car, all suggesting to Kowalyk that Joseph was impaired. Shortly thereafter, Kowalyk administered a roadside breathalyzer test which twice produced an “error” report. Joseph later blew over the legal limit in a breathalyzer test at the station.
Kowalyk arrested Joseph for impaired operation of a vehicle, and brought him into an OPP station near Keele St. and the 401.Green found numerous problems with Kowalyk’s evidence during the trial, including the officer’s note taking, which missed key information — including the fact that he tried and failed twice to get a reading from the roadside alcohol test.
Though the officer acknowledged that information “would be really important,” he could offer no satisfactory reason why he did not include that information in his notes, Green wrote.Green also chastised Kowalyk for reporting in a written “synopsis” of the event that Joseph was “cutting off motorists” during the police pursuit. At the trial, Kowalyk admitted this was, in fact, “just not true.”
“In re-examination, Kowalyk explained that he had used a template in preparing the synopsis in the case before me and, apparently, had not bothered to edit it to conform to the allegations pertinent to the defendant’s investigation,” Green wrote.The judge also criticized Kowalyk for writing in a prisoner log book that he had conducted a physical check of Joseph inside the cell every 15 minutes — a protocol required for prisoner safety. Motion-activated video surveillance showed that neither Kowalyk, nor any other officer, checked on Joseph for over 40 minutes.
The failure to conduct these checks, or to correctly log their occurrence, “is a serious violation that could result in a prosecution of the offending officer” under the Police Services Act, Green wrote.http://www.thestar.com/news/crime/2014/ ... truth.html