Swadron analyses the SIU report

Community News & Features Opinion & Analysis Oct 16, 2004 at 11:35 am

(Following are the complete and verbatim notes of lawyer Barry Swadron read during the press conference on Sept. 29, 2004 called by the family of Jeffrey Reodica about the report of the Special Investigations Unit on the fatal of Jeffrey on May 21, 2004. – Ed.)
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1 The family of Jeffrey Reodica and its legions of supporters will not give up until they achieve Justice for Jeffrey. They believe that Justice for Jeffrey will bring justice for all.

2 Apparently some of the media personnel have shied away from using Jeffrey Reodica’s name in their news reports. Perhaps they are taking a cue from the news releases emanating from the SIU and from the Chief Coroners Office.

1 We are not quite sure why this is happening;
2 Some cite the Youth Criminal Justice Act;
3 We are not sure of the genesis;
4 So far as the late Jeffrey’s parents are concerned, there is no problem in anyone using his name for media purposes or otherwise;
5 Indeed, they want his name used;
6 They have been deprived of his life and they do not want anyone in any respect to be deprived of using his name.

3 Two days ago, the Reodica family was given the News Release of the SIU which concluded that the fatal shooting of Jeffrey Reodica was legally justified.

• The family finds the contents of that Release to be unacceptable and rejects a number of aspects of it;
• We will be discussing some of these aspects here today;

4 The members of the family cannot have Jeffrey anymore and cling to his memories. At this stage in the mourning process, the family is determined to get to the bottom of the real truth of why he had to die.

• We believe that there is significant support in the community for that quest;
• Even before the SIU released its findings, it was the plan of the family and its supporters to press for a public inquiry into the death of Jeffrey. The public inquiry envisaged would involve hearing the testimony of witnesses under oath cross-examining witnesses and making submissions on the evidence;
• (Interestingly enough, the statements obtained by the SIU are not under oath.)
• Yesterday, we learned of a step in the right direction;

5 It was also two days ago, on the heels of the SIU release that Dr. Barry McLellan, Chief Coroner for Ontario, announced that an inquest will be held into the death of Jeffrey Reodica.

1 Dr. McLellan stated that the inquest would review the events surrounding Jeffrey’s death and that the inquest jury may make recommendations aimed at similar deaths. Gosh, we hope so;
2 The Reodica family welcomes Dr. McLellan’s announcement and is anxious to participate in the process;
3 The family urges the Chief Coroner to arrange for the inquest to commence, within reason, as soon as possible;
4 If there is any concern that the announced inquest will be delayed because of space accommodation limitations, the family is willing to travel wherever it can be held.

6 A coroner’s jury has a mandate to inquire into the circumstances of the death and determine,
(a) Who the deceased was (we know he was Jeffrey Reodica);
(b) How the deceased came to his death;
(c) When the deceased came to his death (we know it was May 24, 2004);
(d) Where the deceased came to his death (we know that it was at Sunnybrook Hospital);
(e) By what means the deceased came to his death;

• It will be interesting to see what the jury has to say about how the deceased came to his death and by what means he came to his death;
• We urge the coroner to issue a summons to obtain the entire file of the SIU and to make its contents available to all participants;
• Moreover, we express the hope that the coroner’s investigation in advance of the inquest probe more deeply into the circumstances than the SIU did;

7 When the inquest is held, we hope that it will address at least the following issues:

1 Under what conditions, if any, plainclothes police officers travelling in unmarked cars should be permitted to become involved in community policing?
2 Under what conditions plainclothes police officers travelling in unmarked cars should be required to disclose their identity as police officers?
3 Under what conditions police officers should be permitted to use deadly force?
4 If deadly force is used, at what point does it become excessive?

1 Does the decision of the SIU mean that there can never be a criminal charge laid against the shooter for shooting Jeffrey?

1 In my view it does not;
2 The mandate of the SIU is to determine whether or not criminal charges should be laid in certain circumstances where police officers in Ontario are involved;
3 The SIU, in my opinion, is not the only point of entry to such a prosecution;
4 Moreover, in these circumstances any potential criminal charge would be of the more serious type (indictable) which does not carry a time limit;
5 If it is the case that the SIU did an inadequate, incomplete or substandard investigation, or it came to a conclusion totally against the evidence or the weight of the evidence (we believe that these are all possibilities), in my view there is still scope for criminal charges;

2 Although we have no reason to believe that this will happen, the Coroners Act of Ontario actually contemplates the possibility of a criminal charge arising out of a death being laid during an inquest.

1 By virtue of subsection 2 of Section 27 of the Coroners Act, where, during an inquest, a person is charged with an offence under the Criminal Code of Canada arising out of the death, the coroner is required to discharge the jury and close the inquest, and is then to proceed as if the coroner had determined that an inquest was unnecessary. Still, the Minister (Solicitor General of Ontario) may direct that the inquest be reopened;
2 There is precedent in Ontario where a criminal charge has been laid arising out of the death of the deceased and the coroners inquest halted. (The laying of this criminal charge was based upon evidence that had been heard at the inquest.)

3 Here we are in an odd situation. Had the SIU decided to lay a charge against the shooter, I probably would have said much less today than I will say.

1 If the shooter (who we understand is Officer Dan Belanger) were charged with some form of homicide, I would be concerned that his right to make a full answer and defence in a court venue in this jurisdiction would somehow be compromised by my remarks;
2 Considering that I am not so bridled, I do not have any inhibition to be frank about our thoughts.

4 The Director of the SIU concluded that the subject officer identified himself as a police officer to Jeffrey. Let us explore the Director basis for this finding.

• The Director states that “this is in accordance with normal police practice”.
• Is this the statement of an independent investigator?
• The SIU was called in to determine what happened, not to attribute “normal practice” to the subject officer;
• It begs the question.
• Will the Director accept the family’s word that it was the normal practice of Jeffrey to respect and listen to the police?
• Let us go further. The Director states that “it also makes sense in the circumstances that prevailed that the officer would attempt to exert control by establishing his status as a police officer”.
• This is another terrible flaw.
• Is the Director the apologist for the police officer? Just because it makes sense, does not mean that it happened.
• Is he assuming that the officers were sensible?
• The Director continues. “The fact that the youth dropped the rock he was carrying when ordered to do so also strongly suggests the youth knew the subject officer was a police officer.”
• I strongly suggest that Jeffrey knew that this man who approached him in an aggressive manner was about twice his size and that is the reason why he dropped the rock.
• If the Director’s theory holds water and Jeffrey dropped the rock because he knew that this man was a police officer, why did Jeffrey (who had never in his life been in trouble with the law) immediately thereafter “ disobey the officers order and continue walking away from the officer”, as found by the SIU. This just does not add up.
• None of the youths standing in close proximity to Jeffrey reported seeing a police badge before the shooting. One reported seeing a badge in the hand of one of the officers after the shooting.

5 Let us look at the question of use of force. According to Section 26 of the Criminal Court of Canada,
“Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.”

1 One would presume that the SIU is familiar with that section;
2 We hope that the shooter did not intend to kill Jeffrey, but only to disable him;
3 Is there any suggestion that one shot did not do the trick?
4 Was Jeffrey not disabled after the first shot?
5 Was there any need to finish Jeffrey off?
6 I ask you to consider whether there was any need for a second and a third shot. Perhaps that question should be put to the SIU.

6 I want to read a proposition to you: “Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself”

• I will repeat it (repeat it).
• This is the law.
• In fact, it is section 34(1) of the Criminal Code of Canada
• We have statements from civilian witnesses who were right at the scene and could see and hear clearly what was going on. The evidence is overwhelming that these civilian witnesses did not know that the two men in plainclothes who came from an unmarked car were police officers.
• In fact, they thought that these two men were might have been the fathers or relatives of the white youths.
• Why would Jeffrey Reodica be of a different mind?
• If Jeffrey Reodica did not know that these two men were police officers, he was justified in repelling their force by force.
• The SIU stated that the subject officer walked in front of Jeffrey and grabbed him. In our view, Jeffrey would have been justified in resisting. Jeffrey did not intend to cause death or grievous bodily harm to these two men;
• If Jeffrey did not know they were police officers, his actions were actually permitted by the Criminal Code of Canada.
• A lot of good it will do him now.

7 According to the SIU, the only witness who is able to say that he saw a knife in Jeffrey’s hand before the shots were fired, was the shooter.

• For some reason, the SIU rejects the evidence of the numerous youths who were close by and could see that, during the entire exchange with these two men, Jeffrey was not holding a knife;
• Is the word of these youths not as good as that of the police officers?
• Why is the word of a police officer accepted by the SIU when contradictory statements greatly outnumber his?
• Let us examine the issue of the knife;
• According to the SIU, while driving the unmarked car, the shooter noticed Jeffrey carrying a large rock. No mention of a knife!
• The SIU states that the shooter parked his car, got out and told Jeffrey to drop the rock. No mention of a knife!
• The SIU found that Jeffrey dropped the rock. No mention of a knife!
• Then the SIU finds that Jeffrey started walking away, that the officer grabbed him and told him he was under arrest for possession of a dangerous weapon. The weapon that was referred to was the rock. Still no mention of a knife!
• The SIU states that the shooter told Jeffrey to place his arms behind his back and again told him he was under arrest. Still no suggestion of a knife!
• (Incidentally, we do not concede that Jeffrey was ever told he was under arrest or that he knew that these two men were police officers.);
• The SIU tells us that Jeffrey continued to resist and that the witness officer walked over to the shooter and Jeffrey who were struggling. He, too, physically engaged Jeffrey, so that Jeffrey was on the ground. Still no mention of a knife!
• At this point, according to the SIU, Jeffrey is on his stomach, with the shooter’s knee on his back and the witness officer managing to grab hold of Jeffrey’s right arm. Still no mention of a knife!
• The SIU found that Jeffrey was able to break free of the witness officer’s grip and pushed himself off the ground with his right arm and, as he rose, Jeffrey turned around and struck out at the shooter with his left hand;
• According to the SIU, the shooter believed he was struck on the right leg with a knife and yelled out that Jeffrey had a knife. This is the first mention of a knife!
• Where did this “so called knife” come from? Out of thin air? Is it the immaculate possession? Here we have little Jeffrey doing callisthenics while two big burly seasoned policemen doing everything they can to control him, and all of a sudden a knife comes out of nowhere!

8 According to the SIU, the shooter “believed he was being struck on the right leg with a knife.”

• Let us see if the proof is in the pudding;
• The physical evidence does not support that position at all.
• This was a veteran officer. He should have known what was going on.
• The SIU says that it has the officer’s trousers and states that there is no indication that they were cut.
• The SIU states that neither officer suffered any injury.
• How reasonable was it for him to “believe that he was being struck in the right leg with a knife?”
• What gives?

9 The SIU found that the witness officer approached Jeffrey after the shots were fired, turned him over and removed a knife from his hand.

• If he did so, we would expect the fingerprints of the witness officer to be on the knife.
• The SIU, however, reports that there were no fingerprints found on the knife.
• How can that be reconciled?

1 The continuity of the knife.

o This is a quote from the SIU News Release: “The SIU investigation found that there was incontrovertible evidence that the youth had a knife which was out during the incident. (Incontrovertible is a very strong word.) It continued by stating “The SIU found an open, foldout knife near where [Jeffrey] lay after he was shot. It added that: “One witness positively identified the knife as belonging to [Jeffrey] who apparently carried it for protection.”
o This is a direct quote from the Director: “The existence of the knife at the scene, and the position and state it was discovered provides powerful support that the youth attempted to get to his feet and while so doing, struck out at the officer with the knife.”
o Let us deal with the last statement first: (Repeat it: “The existence….”;
o The Director is somehow attributing magic to the position and state of the knife;
o The Director totally ignores what he states earlier in the News Release. He states earlier in that release that after the shooting, the witness officer approached Jeffrey, turned him over and removed a knife from his hand;
o Here the Director attributes some type of powerful supporting evidence to the position and state the knife was discovered.
o How possibly could the position of a knife (presumably found on the ground by the SIU) possibly relate to an attempt by Jeffrey to get to his feet and while so doing striking out at the officer with the knife?
o Let’s get serious!
o Was the knife in Jeffrey’s hand?
o Was the knife taken from Jeffrey’s pocket?
o Was it Jeffrey’s knife?
o Was it perhaps carried by someone else?
o The Chief Investigator of the SIU in this case advised us that he was first on the scene for the SIU, yet his arrival was no sooner than at least two hours after the shooting. By then, Jeffrey had been taken to the hospital two hours before and the knife in question, if it was Jeffrey’s, certainly was not placed wherever it was by Jeffrey. He was next to dead;
o Let’s face it. The scene was not secured. Certainly it was not secured by the investigating agency: not for two hours.

10 In the News Release of the SIU, it is stated: “It appears one shot entered the side of the youth and the other two entered at his back.”

o Even if a decision was made to use lethal force, why did it have to be a case of using that force to kill? (We should probably recognize that Jeffrey was essentially doomed after he was shot three times);
o “Jeffrey was approximately four to six feet away from the shooter when the shots were fired.”
o If the subject officer had to shoot, the gun could have been pointed at Jeffrey’s legs.
o Why aim the gun at Jeffrey’s upper torso where the chances of killing him were much greater?
o Four to six feet is not very far and it is not difficult to take aim at a particular part of a person’s body.
o For a police officer who is trained in handling a gun, at that range the officer should, with no difficulty, accurately hit any part of the body.

11 The following is taken from the SIU News Release: Fearing for his own safety and that of his partner, the subject officer shot the deceased until he “posed no further threat”.

1 Were three shots necessary to render Jeffrey “no longer a threat”?
2 Many would say none was necessary;
3 I doubt that anyone would say that more than one was necessary
4 In any event, that question should not have been answered by the Director.
5 It should be answered by a jury sitting in a criminal court.

1 There is no room for police officers who would harm members of our community beyond what the law allows.

2 It follows that there is no room for an agency that would endorse as justified such conduct by police officers.

Now we will have a short question period. Please direct your questions through me.