Today we heard the first sentence to be given out in the Robert Dziekanski perjury trials. Constable Kwesi Millington and Corporal Monty Robinson were convicted of perjury, while their fellow officers Constable Bill Bentley and Constable Gerry Rundel were acquitted after trial. The Court sentenced Constable Millington to 30 months of jail time.
The sentence has surprised many, because it is a lengthy jail term for someone who previously had no criminal record or history of criminal behaviour. Many people have wondered why such a significant jail term was handed down in these circumstances, while arguably more serious offenders are given shorter jail sentences or even no jail.
What is perjury?
The definition of perjury is very simple. The Criminal Code defines it as a false statement, made under oath or affirmation, with the intention to mislead the trier of fact. The maximum sentence for perjury is fourteen years jail, indicating that it is a very serious criminal offence. It is defined in the Criminal Code as "Misleading Justice."
Perjury cases are often difficult to prove. The Crown must have the evidence of more than one witness in order to convict someone of perjury. If one person says "He was wearing a red jacket" while another says "Person 1 lied. It was a blue jacket" then the offence of perjury cannot be made out, unless there is sufficient corroborating evidence to show there is perjury. In Constable Millington's case, he said that Mr. Dziekanski was standing when he tasered him. Video evidence taken by a bystander clearly showed that this was false.
Because these cases are hard for the Crown to prove they are rare. But when they do arise, the courts and prosecutors take them very seriously.
Why was this sentence so severe?
This was a significant crime against the administration of justice. It was aggravated by the fact that the lies obstructed the inquiry's ability to get at the truth. And also because there was a death involved, and in many respects the officer can be seen as having lied to cover up his role in that death.
One of the most important parts of our justice system is that it is based on a beyond a reasonable doubt standard, and allows people to be presumed innocent until proven guilty. For the criminal trial and inquiry process to function effectively, we need to trust that people who testify in trials -- whether they be witnesses for the Crown or witnesses for the defence -- will tell the truth. In order to ensure this we make people swear an oath to their religious higher power or a solemn promise to tell the truth.
The expectation is that people will feel their conscience is bound. The expectation is that the criminal trial process, and the public inquiry process will reveal the truth about what has occurred. When people lie, the truth becomes obstructed. The sentencing judge commented when giving the decision that perjury undermines the very heart of the administration of justice. This is very true.
Holding police to a higher standard
In this case, the Crown had sought a sentence of 36 months imprisonment. The defence was seeking a conditional sentence order, commonly known as house arrest. One of the reasons the Court saw fit to reduce the sentence from the upper range of what the Crown was seeking was due to the fact that it will be very difficult for Constable Millington in prison, as he is a police officer.
However, the fact that this was an offence against the administration of justice committed by a police officer also played a role in the length of sentence. The sentencing judge noted that "Perjury is a very serious offence and even more serious when committed by a police officer sworn to uphold the law." Police officers are supposed to understand how oaths and affirmations function in our justice system. They are permitted the special power to act as Commissioners for Taking Oaths in British Columbia. They are sworn to uphold the law, and not seek to undermine it while lying in an inquiry into someone's preventable death.
Some people may believe that it is not fair to hold police to a higher standard in a criminal trial. After all, if you start implying that police have a greater duty to tell the truth, then you open the door to a finding that police have a credibility advantage, something our courts have cautioned against. I disagree. The police deserve to be held to a higher standard.
It is absolutely offensive to hear about police neglecting their duty to tell the truth. Police are often the only witnesses in criminal trials. They are the ones responsible for the collection, handling, and identification of evidence. The RCMP runs the forensic laboratory where drugs and other substances are tested, fingerprints are analyzed, and where blood and urine samples are tested for alcohol or drugs. The police take statements from witnesses, inform victims about the process of being involved in a criminal investigation, and interview suspects. Their credibility must be infallible in order to trust and rely on convictions in our criminal justice system.
If we cannot expect the police to tell the truth, our justice system will crumble. They must be held accountable for anything that is less than truthful.
The Importance of Holding Police to a Higher Standard
As we see our justice system move more toward tribunals, rather than courts, this becomes all the more important. In Immediate Roadside Prohibition cases, for example, we see that the police present their evidence in a sworn report. This will also be the case when the traffic ticket tribunal is put into place. With prohibitions on cross-examination, the need to be able to trust that the police take their duty to tell the truth seriously becomes more important.
Indeed, the Court of Appeal recently characterized the making of an oath or solemn affirmation as something this is of central importance to the legal system as a whole. That it is not merely an administrative matter, but fundamental to the proper and effective administration of justice. As police become increasingly responsible for the administration of justice -- as judge, jury, and executioner at the roadside -- the need to hold them to a higher standard in those roles becomes increasingly important.
Where do we go from here?
Constable Millington has appealed his conviction. and it is expected that he will also appeal the sentence. He has been released on bail pending the determination of his appeal, which means that he will not finish serving the sentence until the Court of Appeal makes their decision. It may be years still before Constable Millington serves some, if any, of a punishment the courts feel his appropriate. But until then, police should recognize this as a somber and necessary reminder of just how important it is to be truthful, honest, and forthright in their evidence, regardless of how it will impact the case or their perception by the court.
After all, a conviction for perjury is far worse than a finding that an officer violated Charter rights. And as we can see from Constable Millington's case, the consequences are significantly more severe.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.