Every so often, when controversy erupts over the handling of a high profile case, those of us with some experience with the system are in a position to clarify issues that may concern the public. The recent disposition of the Todd Bertuzzi case raises some issues worth commenting on.

First, a couple of disclaimers: I was not involved in any way, so these general comments are based only upon the media accounts of what happened. Second, nothing that follows should be taken as a criticism of the sentencing judge, who heard full submissions from the parties before him and made, by all accounts, a careful and well-reasoned decision in imposing sentence.

Todd Bertuzzi, a member of the NHL Vancouver Canucks, chased, caught and punched Colorado’s Steve Moore from behind late in a hockey game last March 8. The incident was witnessed by thousands of people in attendance and watching on television. Several weeks later, Mr. Bertuzzi was charged with assault causing bodily harm. After a few more court appearances, a trial date was scheduled for January 17, 2005 in BC Provincial Court. This scheduling was consistent with the procedural constraints inherent in a justice system that generally measures time in weeks, months and sometimes even years.

According to media accounts, the Crown and defence reached a plea agreement on Monday, December 20 and appeared in Provincial Court on Wednesday, December 22 to enable the defence to enter a new plea of guilty. So far, there is nothing particularly untoward about this procedure, which occurs frequently in the courts of the province.

Where this case becomes curious is in the Crown’s handling of the sentencing hearing. Unlike many cases which have no victims or involve disinterested victims, this case involved an injured victim and his family who were vitally interested in the outcome. They were on the other side of the continent and apparently wanted to fully exercise their rights under s. 722 of the Criminal Code to present victim impact statements to the judge. The Crown, as guardian of the public interest, should have ensured that Mr. Moore had this opportunity. All of the participants, their lawyers and the court had reserved time less than a month later for the hearing. Even if the interests of justice dictated that the new plea be entered on December 22 (which I doubt), I have heard no satisfactory explanation from the Crown why sentencing could not have been handled on January 17. A word from the Crown, which had carriage of the case, could probably have made that happen. Instead, the parties spent a full day, and then some, making submissions on sentence a few days before Christmas.

The Crown should answer some questions: How did it get a full day of court time on such short notice? Why didn’t the Crown simply deal with sentencing on January 17, given the Moore family’s desire to be present? Does the Crown deal with all victims of crime in this fashion? Until these questions are answered more fully, there will be a perception that Mr. Bertuzzi was treated differently than others may have been. That perception does nothing to enhance confidence in the system we lawyers have dedicated our professional lives to.

On December 6, 2004, The Vancouver Sun ran a tiny story from Metairie, Louisiana: “A man sheriff’s deputies had shot twice with a Taser stun gun died Saturday, a day after he was pulled over for driving erratically, officials said”. The item recounted that the victim, 35 year old Patrick Fleming, had been tasered at the traffic stop and then again at the jail.

Why should this death matter? Because, according to recent reports from Amnesty International, at least 74 people in the United States and Canada have died after being subdued by this “non-lethal” high-tech weapon. It is apparent from media reports, including recent stories in the Miami Herald, that law enforcement officials are using Tasers routinely and have employed them against young children and the elderly.

Here in British Columbia, four people have died after being hit with the Taser’s 50,000 volt charge: Terrance Hanna, Clayton Willey, Roman Andreichik and Robert Bagnell. In at least a couple of these cases, the victims were not breaking any laws, but were apparently being subdued for their own protection.

It should be apparent to any rational observer that independent scientific studies are required to determine whether these weapons are safe for use against humans. Instead of pushing for a truly independent review, British Columbia’s Police Complaint Commissioner has commissioned a study from the first Canadian police department to use the devices. Victoria police sergeant Darren Laur will be involved in preparing the final report. In September of 2000 Laur was quoted as saying, “my goal is to see a Taser in every police car”. So much for objectivity.

British Columbians, and Canadians, need an immediate moratorium on the use of Tasers and a comprehensive independent scientific analysis before more people die unnecessarily.

Postscript: Another man has died after being tasered, this time in Hollywood Fla. on Wednesday, December 15, 2004.

Post-postscript: Yet another man has died, this time in Delray Beach, Fla. on Thursday, December 22, 2004.

Lawyers will be in court in Vancouver on Friday, December 10, 2004, attending the first case management case in the strip search class action lawsuit. Mr. Justice Romilly is expected to hear from lawyers for the plaintiffs, the Government of British Columbia and the City of Vancouver on issues such as the scheduling of a subsequent certification application.

The plaintiffs allege that the Vancouver Jail has employed a practice of routinely strip-searching everyone brought into the facility, in violation of their constitutional rights.

A BC Supreme Court judge has said it “makes absolutely no sense” for Julie Berg to have to try to personally fund her participation at the public hearing into her complaint about her brother’s death. Justice Stromberg-Stein made the comment at the end of a hearing to address whether an “agreed” statement of facts had been properly admitted at the public hearing.

The judge also suggested that legislative changes to the Police Act were overdue, and that any such changes would “hopefully” grant complainants a greater right to participate at public hearings.

Julie Berg has been fighting for over four years to obtain accountability for an incident that occurred on October 22, 2000. Her brother Jeff, 37, a man with no criminal record, no history of violence, no drugs or alcohol in his system and who was unarmed, died after he was confronted by Cst. David Bruce-Thomas of the Vancouver Police Department. Jeff sustained serious injuries in the incident, including bruises to his face, head, neck and testicle, while Cst. Bruce-Thomas was unscathed. Civilian eyewitnesses have testified under oath that they saw a police officer kicking him while he was motionless on the ground, testimony corroborated by forensic pathologist Dr. Laurel Gray. Jeff died in hospital of a traumatic aneurysm sustained to his carotid artery. His death was ruled a homicide by a coroner’s jury.

Following a lengthy investigation by Cst. Bruce-Thomas’ VPD colleagues, no criminal charges were laid against him. Cst. Bruce-Thomas has received the support of VPD Chief Jamie Graham, who suggested publicly that Jeff deserved the treatment he received at the hands (and feet) of the police. Graham suggested that he and the three acquaintances Jeff was with had been involved in a “home invasion”, although none of them were convicted of any such offence and no reliable evidence has ever been offered in court that a home invasion occurred.

The public hearing ended on December 17, 2004 and a decision is expected in January. Publicly funded lawyers attended the lengthy hearing to represent the interests of the Police Complaint Commissioner, Cst. Bruce-Thomas, the VPD and the Vancouver Police Union. Ms. Berg was unable to obtain public funding for legal counsel.

The Vancouver Police Department’s public relations people have been spinning in circles trying to defend the actions of a member who recently arrested a Langara College journalism student. The female student, who happens to have a law degree, was taking pictures with a zoom lens from a distance while a VPD member confronted some squeegee kids at a Vancouver intersection. The VPD member apparently took exception to the photographer’s actions and slapped handcuffs on her, citing “obstruction” as the reason for the arrest. The police officer reportedly told her that she was getting her first lesson in journalism. No charges were laid against anyone, including the squeegee kids, and the student was eventually released from police custody.

According to Vancouver police spokesperson Sarah Bloor, the student was arrested “for her own safety”. It would be tempting to write this sorry incident off as an isolated case of overzealousness on the part of the VPD members involved, but similar incidents happen much too often in the City of Vancouver.

There can be no doubt that police officers perform a difficult and often dangerous job and that they should enjoy the respect and trust of the public. From my perspective as a lawyer who routinely handles complaints of alleged police misconduct and as a person who was subjected to unwarranted abuse by the VPD, I regret to say that there is a serious problem within the department.

In my opinion, a significant number of VPD members routinely ignore the laws that they are sworn to uphold. This may be due to inadequate training, lack of proper supervision, a sense that they are immune from discipline, or perhaps a combination of these factors.

The VPD is conducting an internal investigation into the student’s complaint. This will undoubtedly be an educational experience for her as well. She will learn that a VPD internal investigation is a sham, that the Vancouver Police Board is ineffectual and that the Police Complaint Commission has inadequate resouces and an unsatisfactory statutory framework to provide effective oversight of the municipal police in this province.